United States District Court, W.D. Kentucky, Paducah Division
MELISSA A. MORRIS PLAINTIFF
ZURICH AMERICAN INSURANCE COMPANY, et al. DEFENDANTS
OPINION AND ORDER
KING, MAGISTRATE JUDGE
Judge Thomas B. Russell referred this matter to Magistrate
Judge Lanny King for ruling on discovery motions. (Docket #
16). This matter is before the Court on Plaintiff's,
Melissa Morris, Motion to Compel the Production of Documents.
(Docket # 42). Defendants, Zurich American Insurance Company
and Zurich American Insurance Company of Illinois, responded
in opposition. (Docket # 50). This Motion is now ripe for
adjudication. For the reasons stated below, the Motion is
Complaint, filed on July 11, 2016 in Christian Circuit Court,
was removed to this Court on August 11, 2016. (Docket # 1).
Judge Russell entered the initial Scheduling Order on
February 10, 2017. (Docket # 16). The initial Scheduling
Order included the following deadlines: fact discovery was to
be completed by August 31, 2017; Plaintiff's expert
disclosures were due by October 1, 2017; Defendants'
expert disclosures were due by November 15, 2017; all
discovery was to be completed by December 31, 2017;
dispositive motions were due by February 1, 2018; a
telephonic pretrial conference was set for April 20, 2018;
and the matter was set for trial by jury on May 7, 2018.
August 31, 2017, the last day of the fact discovery period,
Plaintiff issued a request for the production of documents to
Defendants. (Docket # 42-1, 2). On September 12, 2017, twelve
days after the fact discovery cutoff, Plaintiff filed a
Motion for Extension of Time to Complete Fact Discovery.
(Docket # 18). On September 29, 2017, Defendants filed a
Motion for Protective Order, seeking to not be obligated to
respond to Plaintiff's untimely document requests.
(Docket # 20). On October 12, 2017, Judge Russell granted
Plaintiff's Motion for Extension of Time to Complete Fact
Discovery and denied Defendants' Motion for Protective
Order on the basis that it was moot. (Docket # 21). Judge
Russell ordered Defendants to respond to the discovery
requests that were the subject of their motion.
(Id.). Further, Judge Russell extended both the
discovery and expert disclosure deadlines to the following:
fact discovery was to be completed by October 15, 2017;
Plaintiff's expert disclosures were due by October 31,
2017; Defendants' expert disclosures were due by December
15, 2017; all discovery was to be completed by January 15,
2018. (Id.). The deadline for dispositive motions,
February 1, 2018, remained unchanged. (Id.;
see Docket # 16).
November 10, 2017, Defendants responded to Plaintiff's
request for production of documents. (Dockets # 42, 50).
February 1, 2018, Defendants filed a Motion for Summary
Judgment. (Docket # 23). Under Local Rule 7.1(c), Plaintiff
had twenty-one days to file her response. On February 14,
2018, Judge Russell held a telephonic status conference and
granted Plaintiff's Motion for Leave to File Attachments
Under Seal. (Docket # 28). On February 28, 2018, six days
after Plaintiff's response was due, Plaintiff filed a
Motion for Extension of Time to File her Response. (Docket #
33). On March 6, 2018, Defendants filed their Response to
Plaintiff's Motion for Extension of Time to file her
Response to Defendants' Motion for Summary Judgment.
(Docket # 36). On March 7, 2018, Plaintiff filed her Reply to
Defendants' Response to Plaintiff's Motion for
Extension of Time, which included a declaration pursuant to
56(d). (Docket # 37). In her declaration, Plaintiff asserted
that she could not present facts essential to her claims
because Defendants failed to produce documents responsive to
her discovery requests even after the Court ordered them to
respond. (Id.). This was the first time that
Plaintiff raised an issue with Defendant's responses to
her written discovery requests. On March 21, 2018, Judge
Russell granted Plaintiff's Motion and allowed Plaintiff
to file her Response to Defendants' Motion for Summary
Judgment. (Docket # 40). Plaintiff fully responded to
Defendant's Motion for Summary Judgment and did not
mention any written discovery issues.
March 22, 2017, the Court held a telephonic status
conference. (Docket # 46). This Court granted Plaintiff leave
to file a motion to compel in order to fully articulate her
arguments but did not address the timeliness issue.
(Id.). On March 27, 2018, Plaintiff filed this
Motion to Compel. (Docket # 42).
courts exercise extremely broad discretion in controlling
discovery. Hyland v. Homeservices of Am., Inc., No.
3:05-CV-612, 2012 U.S. Dist. LEXIS 67028, at *17 (W.D. Ky.
May 14, 2012) (citing Crawford-El v. Britton, 523
U.S. 574, 598 (1998)). Under Federal Rule of Civil Procedure
37, a party may move for an order to compel a complete
response to properly submitted interrogatories or requests
for production of documents. Fed R. Civ. P. 37. However, a
district court may hold that the requesting party has waived
the right to compel a response if the party to whom the
motion is directed is substantially prejudiced from the
requesting party's delay. Id. (citing Gault
v. Nabisco Biscuit Co., 184 F.R.D. 620, 621 (D. Nev.
1999)). Motions to compel filed after the discovery deadline
are almost always deemed untimely. See, e.g., Cunningham
v. Rapid Capital Fin., 3:15-CV-00957, 2017 WL 6043421,
at *2 (M.D. Tenn. Mar. 3, 2017); Thomas v.
Louisville/Jefferson Cty. Metro Gov't,
3:12-CV-00449-CRS, 2016 WL 4385857, at *1 (W.D. Ky. Aug. 15,
2016); Mitchell v. Mike, CV 5:14-301-DCR, 2015 WL
8770073, at *2-3 (E.D. Ky. Dec. 14, 2015); Croskey v. BMW
of N. Am., Inc., No. 02-CV-73747-DT, 2005 U.S. Dist.
LEXIS 3397, at *15 (E.D. Mich. Mar. 4, 2005); In re
Sulfuric Antitrust Litigation, 231 F.R.D. 331, 332 (N.D.
Motion to Compel is untimely
Plaintiff asserts that Defendants attached policy documents
that were not produced prior to the discovery deadline of
January 15, 2018 to support their motion for summary
judgment. Plaintiff generally argues that she cannot obtain
the documents that she has requested from any other source
and that she will not be able to support her claim at trial.
Plaintiff also asserts that, in addition to other objections,
Defendants have provided boilerplate objections to nearly
every single document request. After further review of the
docket and Plaintiff's earlier Declaration made pursuant
to 56(d) (Docket # 37), it appears that Defendant produced a
number of documents the day before filing their Motion for
Summary Judgment (Docket # 37-2). Although the Court is
concerned with the timing of this production, Plaintiff has
not shown how she was prejudiced by receiving the documents
has raised potentially valid arguments concerning the timing
of production, the use of boilerplate objections to
production, and ultimately, the lack of production, however,
it does not change the fact that Plaintiff failed to raise
these arguments in a reasonable time subsequent to receiving
Defendant's written responses. To illustrate, Plaintiff
sought leave to file this Motion to Compel over four months
after receiving Defendant's responses to her written
discovery, over four months after the close of fact
discovery, over two months after the close of all discovery,
and close to two months after dispositive motions were due
(and Defendants' Motion for Summary Judgment had been
fully briefed). (See Docket # 42). Even if Plaintiff
recognized and contacted defense counsel about the alleged
deficiencies, she did not bring them to the Court's
attention until after Defendants filed their Motion for
Summary Judgment. Also, Plaintiff failed to raise this issue
during any of the conferences held by the Court. See
Spurlock v. Whitley, 79 Fed.Appx. 837, 839 (6th Cir.
2003) (per curiam) (affirming denial of discovery where
plaintiff had ample opportunity during discovery period to
examine documents at issue); Kalis v. Colgate-Palmolive
Co., 231 F.3d 1049, 1058 (7th Cir. 2000) (finding no
abuse of discretion in denying motion to compel filed after
discovery closed and summary judgment motion was filed);
Ginett v. Fed. Express Corp., 166 F.3d 1213 (6th
Cir. 1998) (table) (affirming denial of motion to compel
where plaintiff failed to move before discovery deadline).
Plaintiff has failed to articulate any justification for her
untimeliness. See Hyland v. Homeservices of Am.,
Inc., No. 3:05-CV-612, 2012 U.S. Dist. LEXIS 67028, at
*18-21 (W.D. Ky. May 14, 2012) (holding that plaintiffs'
motion to compel was untimely and noting that plaintiffs
failed to articulate any justification for their failure to
do so until six months after the defendants' responses
were served and ten days before the close of discovery);
Vision Center Northwest, Inc. v. Vision Value, LLC,
2008 WL 5191456, at *3 (N.D. Ind. Dec. 10, ...