Kantsevoy v. Lumenr LLC

301 F.Supp.3d 577 (2018)


LumenR (D) was founded by Gregory Piskun, M.D. and focused on developing a medical device that would aid in surgery to remove cancerous lesions and tumors from the colon, stomach, and esophagus; The LumenR Tissue Retractor System (Tissue Retractor). Piskun approached Kantsevoy (P) at a convention to discuss the Tissue Retractor. P claims that on June 12, 2010, Piskun him to formally join the development team. P alleges that Piskun made an 'offer' that 'included a promise to pay P the lesser of $500 per hour or $2500 per day for his consulting services' that also included an equity ownership package to be mutually and reasonably agreed upon later. P alleged acceptance of the offer.  D alleges a different story where Piskun 'sent an email to P inquiring regarding P's interest in consulting on the project.' P said he was interested and there were no further communications. The parties conducted some business on other issues, and eventually, things got very caustic with lawsuits coming from both sides. D answered P's complaint and counterclaimed. The Court issued a Scheduling Order on March 23, 2017. It set a deadline of May 24, 2017, for joinder of additional parties and amendment of pleadings. A deadline of October 23, 2017, was set for completion of discovery, and the dispositive pretrial motions deadline was set for November 20, 2017. The court extended the deadlines on three different occasions. D moved to amend its Answer and Counterclaims ten days after the close of the discovery period that had been extended three times, six days after the deadline for dispositive motions, and about six months beyond the deadline for amendment of pleadings. D seeks to add a counterclaim for Breach of Contract - Third Party Beneficiary. P points out that D did not move to amend its pleadings until long after the deadline of May 24, 2017, that this Court set for doing so and he argues that LumenR's belated amendment fails Fed. R. Civ. P. 16's 'good cause' standard for modifying a scheduling order. D asserts that 'the relevant facts were not fully known until well after the deadline of May 24, 2017, had passed.'