                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 SERVICE EMPLOYEES
 INTERNATIONAL UNION NATIONAL
 INDUSTRY PENSION FUND, et al.,

                        Plaintiffs,                   Case No. 1:17-cv-01215 (TNM)

                        v.

 HEBREW HOMES HEALTH
 NETWORK, INC., et al.,

                        Defendants.


                                MEMORANDUM AND ORDER

       More than a year after discovery closed—after full summary judgment briefing and a

Report and Recommendation—Hebrew Homes Health Network, Inc., and its co-defendants

(collectively, “Hebrew Homes”), have moved to supplement the record with letters they claim

are relevant to their statute of limitations defense in this ERISA case. For the reasons below,

Hebrew Homes’ Motion to Supplement the Record is denied.

       The applicable statute and the Federal Rules provide that a district court may receive

more evidence when reviewing a magistrate judge’s order. 28 U.S.C. § 636(b)(1)(C); Fed. R.

Civ. P. 72(b)(3). But “[w]hile the court may receive further evidence, attempts to introduce new

evidence after the magistrate judge has acted are disfavored.” Caldwell v. Jackson, 831 F. Supp.

2d 911, 914 (M.D.N.C. 2010) (emphasis added). “In appropriate cases . . . the district court may

exercise its discretion and accept further evidence when a party offers sufficient reasons for so

doing.” Id. But Hebrew Homes have not offered sufficient reasons for their eleventh-hour

request to supplement the record.
          Hebrew Homes had ample opportunity for discovery. Service Employees International

Union Nation Industry Pension Fund sued Hebrew Homes in June 2017, Compl., ECF No. 1, and

the Court referred the matter to Magistrate Judge G. Michael Harvey for full case management.

In October 2017, Judge Harvey set a schedule allowing five months for discovery. See

Scheduling Order, ECF No. 15. But he later granted Hebrew Homes’ motion to extend

discovery by three months, requiring discovery to close by June 2018. See Order, ECF No. 18.

Then Hebrew Homes again moved to extend the discovery period, this time by eight days. Mot.

for Extension of Time, ECF No. 22. Judge Harvey granted the further extension. See Order,

ECF No. 23. After Judge Harvey held a post-discovery status conference, he allowed Hebrew

Homes even more discovery. See 6/25/18 Minute Order. Finally, in July 2018, discovery

closed.

          After discovery closed, the parties engaged in summary judgment briefing that lasted

until December 2018. The parties’ cross-motions for summary judgment were pending before

Judge Harvey until July 2019. But at no time between October 2017 and July 2019 did Hebrew

Homes try to introduce the letters now attached to their Motion to Supplement the Record. That

is true, even though they apparently had the documents in their possession and the statute of

limitations issue was central to their defense, see, e.g., Defs.’ Mem. in Supp. of Mot. for Summ.

J. at 15–26, ECF No. 37-2. Only after Judge Harvey issued his Report and Recommendation and

the Court granted Hebrew Homes’ request for an extension of time to file objections did they

proposed to introduce this evidence.

          Why the delay? Hebrew Homes suggest only that they “discovered documents”—the

letters—“which were not included by either party in their initial disclosures.” Mem. in Supp. of




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Mot. to Supplement ¶ 1, ECF No. 53-1. There is no explanation for why the documents were

only discovered now or what efforts were made earlier that failed to produce them.

       Even with the plaintiffs’ consent, this is insufficient justification for undermining the

efforts of the magistrate judge—who did not have the benefit of this evidence in crafting his

recommendation on the parties’ cross-motions for summary judgment—and delaying the

administration of justice. The referral process, especially in the summary judgment context, is

inefficient and wasteful of judicial resources when the district court considers objections to the

magistrate judge’s recommendation that are based on facts the magistrate judge did not have the

benefit of considering. A party needs a better justification than “we forgot.” See Heisler v.

Nationwide Mutual Ins. Co., --- F.3d ---, 2019 WL 3417277, at *8 (8th Cir. July 30, 2019).

       Hebrew Homes is simply “trying to add evidence [they] should have introduced [more

than twelve] months earlier,” and “[their] realization after reading the magistrate judge’s

recommendation that [they] had failed to introduce all of the evidence [they] needed to survive

summary judgment is not a particularly persuasive ground for convincing a district court to

accept new evidence.” Id. “The district court [is] free to accept further evidence, but it [is]

under no obligation to permit a party to fix its own errors in compiling the summary judgment

record.” Id.

                                              *   *   *

       Because the Court finds that Hebrew Homes had significant opportunity for discovery

and has not adequately justified its failure to include the proposed new evidence prior to the

Report and Recommendation, it is hereby




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      ORDERED that Hebrew Homes’s Motion to Supplement the Record is DENIED.


                                                             2019.08.19
                                                             16:34:50 -04'00'
Dated: August 19, 2019                      TREVOR N. McFADDEN, U.S.D.J.




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