Garcia v. Service Employees International Union

          ORDER [Docket No. 324]

          Nancy J. Koppe, United States Magistrate Judge

          Pending before the Court is Plaintiffs’ motion to compel, filed on May 28, 2019. Docket No. 324. Defendants filed a response in opposition and Plaintiffs filed a reply. Docket Nos. 332, 333. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, Plaintiffs’ motion to compel is hereby DENIED.

          I. BACKGROUND

          These consolidated cases involve Plaintiffs affiliated with the Clark County Public Employees Association, also known as SEIU 1107, who bring suit regarding the trusteeship over that local union by the SEIU. This case was removed from state court two years ago. See Docket No. 1. On July 31, 2017, the Court entered a scheduling order with a discovery cutoff of December 6, 2017. Docket No. 53. Upon consolidation of the cases, the Court extended the discovery cutoff to February 20, 2018. Docket No. 85. The Court then extended the discovery cutoff five more times. See Docket Nos. 114, 128, 154, 178, 192. On August 22, 2018, in allowing the third extension, the Court expressed concern regarding the diligence in advancing discovery. Docket No. 154 at 1. On September 20, 2018, the Court noted its expectation that the fourth extension would be the "final extension ." Docket No. 178 at 1 (emphasis in original). On October 9, 2018, the Court indicated with the fifth extension that "[i]t is time for discovery to wrap up." Docket No. 192 at 2. The discovery cutoff eventually expired on November 30, 2018. See id. at 1.

         On the day of the discovery cutoff, Plaintiffs filed a motion to compel documents. Docket No. 223. On January 17, 2019, the Court denied that motion to compel without prejudice to allow for proper meet-and-confer efforts. Docket No. 257. On January 30, 2019, the dispositive motion deadline expired. See Docket No. 192 at 1. On February 15, 2019, Plaintiffs’ counsel sent a letter requesting a meet-and-confer on the subject dispute. See Docket No. 324-2 at 59. On February 22, 2019, counsel held a telephonic conference. Docket No. 324-1 at ¶ 11. On March 13, 2019, as part of the meet-and-confer, Defendants agreed to search for text messages on certain subjects. See Docket No. 324-2 at 74-75; see also id. at 63-34. Defendants’ letter provides detail of the search they would undertake. See id. at 74-75. That letter also invites a response from Plaintiffs. Id. at 76. Plaintiffs did not respond to that letter. Docket No. 332-1 at ¶ 5. On April 16, 2019, Defendants explained in writing that their search uncovered no responsive text messages. See Docket No. 324-2 at 78. Plaintiffs did not respond to that letter. Docket No. 332-1 at ¶ 8. Six weeks later, on May 28, 2019, Plaintiffs filed the instant motion to compel. Docket No. 324.

Plaintiffs appear to argue that the previous order denying the motion to compel for insufficient meet-and-confer efforts was in error. See, e.g., Reply at 5-6, 15 (asserting that Defendants had misrepresented the facts and the Court had misapplied the law). Plaintiffs did not file a motion for the undersigned to reconsider that order and did not object to that order to the assigned district judge. Even more significantly, Plaintiffs effectively consented to the denial of the previous motion to compel on this basis. Although Defendants opposed the initial motion to compel by arguing at length that the meet-and-confer efforts were insufficient, see Docket No. 238 at 5-8, Plaintiffs’ reply to the underlying motion to compel did not contest the insufficiency of the meet-and-confer efforts and, instead, attempted to justify the preemptive filing of that motion to compel as an effort to avoid a timeliness objection. Docket No. 245 at 2. Plaintiffs’ reply then stated as follows:

          In short, four and a half months elapsed from the issuance of the order denying without prejudice the previous motion to compel to the filing of the renewed motion to compel. That period included stretches of inactivity from Plaintiffs, including waiting a month to send a meet-and-confer letter, providing no response at all to Defendants’ letter with search criteria that was sent on March 13, 2019, and waiting six weeks after receiving word that no responsive documents were found to file the instant motion to compel. During that same period, the dispositive motion deadline expired. In fact, Plaintiffs’ motion to compel was filed four months after the expiration of that deadline. As such, motions for summary judgment were filed and fully briefed months before the motion to compel was filed. Docket Nos. 271-72 (motions), 289-90 (responses), 296-97 (replies).

          II. STANDARDS AND ANALYSIS

          Defendants oppose the motion to compel on substantive and procedural grounds, including that the motion is untimely. Resp. at 11 n.3. District court oversight is encouraged to avoid "protracted discovery, the bane of modern litigation." Rossetto v. Pabst Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (summarily affirming district court’s finding that discovery motion was untimely). A party may not unduly delay in moving to compel discovery. E.g., Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999). "Untimeliness is sufficient ground, standing alone, to deny a discovery motion." KST Data, Inc. v. DXC Tech. Co., 344 F.Supp.3d 1132, 1136 n.1 (C.D. Cal. 2018) (quoting Williams v. Las Vegas Metro. Police Dept., Case No. 2:13-cv-01340-GMN-NJK, 2015 WL 3489553, at *1 (D. Nev. June 3, 2015)). Indeed, courts "will often deny Rule 37(a) motions because the moving party delayed too long." 8B Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE, § 2285 (3d ed. Supp. 2019) (collecting cases).

Defendants raise their timeliness argument in a footnote, albeit a lengthy one. The Court would have preferred more complete briefing on the issue. At any rate, the timeliness of a motion to compel may be addressed sua sponte without any briefing at all. See, e.g., Bonavito v. Nev. Prop. 1 LLC, Case No. 2:13-cv-00417-JAD-CWH, 2014 WL 5364077, at *4 (D. Nev. Oct. 21, 2014).

          It has long been clear in this District that, absent unusual circumstances, the outer limit for filing a motion to compel is the deadline for filing dispositive motions. See Gault, 184 F.R.D. at 622. Discovery motions filed after the deadline for dispositive motions are presumptively untimely and such late-filed motions are routinely denied. See, e.g., id. ; Bartech Sys. Int’l, Inc. v. Mobile Simple Sols., Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 WL 1787905, at *2 (D. Nev. Jan. 31, 2018), recon. denied, 2018 WL 1785869 (D. Nev. Apr. 13, 2018); Exobox Techs. Corp. v. Tsambis, Case No. 2:14-cv-00501-RFB-VCF, 2017 WL 977859, at *1 (D. Nev. Mar. 10, 2017); Gray v. Cox, Case No. 2:14-cv-01094-JAD-PAL, 2016 WL 4367236, at *3 (D. Nev. Aug. 12, 2016); Randazza v. Cox, Case No. 2:12-cv-02040-JAD-PAL, 2014 WL 12789627, at *2 (D. Nev. Dec. 30, 2014); Bonavito, 2014 WL 5364077, at *4; Krause v. Nev. Mut. Ins. Co., Case No. 2:12-cv-00342-JCM-CWH, 2014 WL 428675, *2-4 (D. Nev. Feb. 4, 2014), objection overruled, 2014 WL 3592655, at *5 (D. Nev. July 21, 2014); Agarwal v. Or. Mut. Ins. Co., Case No. 2:11-cv-01384-LDG-CWH, 2013 WL 211093, at *5-6 (D. Nev. Jan. 18, 2013); Shinn v. Baxa Corp., Case No. 2:07-cv-01648-JCM-CWH, 2011 WL 13248410, at *1-2, 4 (D. Nev. Nov. 9, 2011); Hall v. Schumacher, Case No. 2:10-cv-01353-GMN-LRL, 2011 WL 4458845, at *2 (D. Nev. Sept. 23, 2011); Thurston v. City of N. Las Vegas, Case No. 2:10-cv-00516-LRH-RJJ, 2011 WL 3841110, at *1-2 (D. Nev. Aug. 29, 2011); Christmas v. MERS, Case No. 2:09-cv-01389-RLH-GWF, 2010 WL 2695662, at *2 (D. Nev. July 2, 2010). The rationale for this approach is entirely clear: discovery should be completed before moving to the merits stage of litigation and continuing to address the substance of discovery motions filed after the dispositive motion deadline would "disrupt the court’s management of its docket and defeat the purpose of the Scheduling Order." Gray, 2016 WL 4367236, at *3.

Appellate courts have approved of this exercise of discretion to find discovery motions filed after the dispositive motion deadline to be untimely. E.g., Packman v. Chicago Tribune Co., 267 F.3d 628, 647-48 (7th Cir. 2001); Hinson v. Clinch Cty. Bd. of Educ., 231 F.3d 821, 825, 826 (11th Cir. 2000); Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1179 (9th Cir. 2006) (dicta noting discretion of district court to deny as untimely motion to compel filed "only after the deadlines for discovery or submission of dispositive motions had passed" (emphasis in original)).

          In resisting a finding of untimeliness, Plaintiffs here note that the previous motion to compel was denied for failing to comply with the meet-and-confer requirements and they further contend that counsel were conferring during the intervening months. See, e.g., Mot. at 7-11; Reply at 15. "Denial of a motion to compel due to insufficient efforts to confer should not usually preclude another motion to compel if such efforts prove unsuccessful. Nonetheless, timing considerations may affect renewed motions. Discovery cutoffs, in particular, might come into play and defeat a renewed effort to obtain a court order for more discovery. " Wright, Miller, & Marcus, supra, § 2285 (emphasis added). The requirement to meet-and-confer is not an excuse for failing to file a discovery motion in prompt fashion; counsel must diligently conduct those efforts to avoid unnecessary delay. See Sille v. Parball Corp., Case No. 2:07-cv-00901-KJD-LRL, 2010 WL 2505625, at *2 (D. Nev. June 14, 2010) (denying motion to compel as untimely and indicating that, "[w]hile parties must meet and confer prior to the filing of a motion to compel, counsel are still expected to be diligent in doing so"); see also Haviland v. Catholic Health Initiatives-Iowa, Corp., 692 F.Supp.2d 1040, 1044 (S.D. Iowa 2010) (denying motion to compel as untimely and indicating that "the Court sees no reason why Plaintiffs could not have upheld their ethical duty to attempt to resolve the discovery conflict without court action, yet still have made this motion at a much earlier date"). For example, a motion to compel has been found to be untimely when it was renewed more than three months after issuance of an order finding the meet-and-confer requirements had not been satisfied and after resolution of dispositive motions. See Shinn, 2011 WL 13248410, at *4 ("Diligence requires more. A party cannot delay a motion with impunity").

Plaintiffs appear to argue that they had free range to wait as long as they wanted to renew the motion to compel because the order denying the previous motion to compel without prejudice did not provide an explicit deadline for refiling. See Mot. at 7. Of course, a court denies a motion to compel to require proper meet-and-confer efforts in the hope that there may be no need for any additional motion practice, so the absence in such an order of an explicit deadline to renew a motion to compel should not be surprising. Regardless, the Court is not required to advise parties of well-settled law that motions to compel must be filed before the dispositive motion deadline absent a showing of unusual circumstances.

Litigants do not waive a timeliness objection by meeting-and-conferring or searching for documents after the applicable deadlines. See Flynn v. Health Advocate, Inc., Case No. CIV.A.03-3764, 2005 WL 288989, at *8 (E.D. Penn. Feb. 8, 2005) (holding that that opposing party’s continued production of documents after the close of discovery did not waive a timeliness objection (discussing Banks v. CBOCS West, Inc., Case No. 01 C 0795, 2004 WL 723767, at *3 (N.D.Ill. April 1, 2004)); see also Days Inn Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 398 (N.D. Tex. 2006).

          In this case, as described more fully above, the Court provided several admonitions to wrap up discovery in a diligent manner. When Plaintiffs’ motion to compel was denied without prejudice a few weeks prior to the dispositive motion deadline, time was of the essence to get that process underway. Nonetheless, Plaintiffs waited a month to send a letter to Defendants on this issue. No explanation has been advanced to explain that four-week delay. On March 13, 2019, as part of the meet-and-confer, Defendants identified the search that they would undertake for text messages. No response was served. On April 16, 2019, Defendants explained in writing that their search found no responsive text messages. No response was served. Instead, Plaintiffs then waited another six weeks to file the instant motion to compel. No explanation has been advanced to explain that six-week delay. These are not unusual circumstances that justify the filing of the instant motion four months after the dispositive motion deadline. While further meet-and-confer efforts were required to file the instant motion, Plaintiffs still unduly delayed in bringing this motion to compel. In short, the need for meet-and-confer efforts after the denial of the previous motion to compel do not justify the significant delay in renewing the motion to compel.

To the extent Plaintiffs’ counsel’s efforts were focused elsewhere during that period, such as briefing motions for summary judgment or motions for reconsideration, see, e.g., Docket Nos. 266, 276, 289, 290, there is nothing unusual about attorneys having competing demands on their time. That "counsel was busy is not a satisfactory justification for the untimely motion." Burgos-Martinez v. City of Worcester, 345 F.Supp.3d 105, 107 (D. Mass. 2018); see also Krause, 2014 WL 3592655, at *5 ("The fact that counsel may be busy or understaffed is nothing unique to her circumstances that would constitute good cause excusing her failures").

Defendants argue there were insufficient meet-and-confer efforts given the lack of responses to their letters of March 13, 2019, and of April 16, 2019. See Resp. at 10-12. This argument has some force as additional in-person or telephonic conferences are generally required when the circumstances of a discovery dispute have evolved, see, e.g., McNamara v. Hallinan, Case No. 2:17-cv-02966-GMN-NJK, 2019 WL 918984, at *2 n.3 (D. Nev. Feb. 25, 2019), but the Court need not resolve this issue given the motion’s untimeliness.

Plaintiffs put a different gloss on this timeline, arguing that the instant motion "cannot be considered untimely" because "[o]nly six weeks have passed" between the last correspondence from Defendants that no responsive text messages were found and the filing of the motion to compel. See Reply at 15. As a threshold matter, Plaintiffs’ position does not account for the other periods of inactivity, including most notably the month-long delay in initiating the meet-and-confer process. Even taking that six-week delay in isolation, especially in the context of a discovery motion filed after the dispositive motion deadline, a six-week delay between the conclusion of meet-and-confer efforts and the filing of a motion to compel is indicia of an untimely motion. Cf. Bonavito, 2014 WL 5364077, at *1, 4 (with respect to motion to compel responses to a second set of requests for production, holding that motion was untimely because the discovery responses were served three weeks before the dispositive motion deadline but the motion to compel was filed three weeks after that deadline (i.e., six weeks after the dispute arose)); see also Gray, 2016 WL 4367236, at *3 (holding that motion to compel filed by a pro se prisoner was untimely when filed the day after the dispositive motion deadline and seven weeks after receipt of letter that interrogatories would not be answered); Thurston, 2011 WL 3841110, at *1 (holding that motion to compel was untimely when filed 20 days after the dispositive motion deadline and seven weeks after the underlying depositions took place).

          Not only are unusual circumstances absent here, the above timeline is particularly problematic given the circumstances in the case. As noted above, this is an older case in which discovery was extended numerous times and the Court warned the parties that discovery needed to be wrapped up. Motions for summary judgment have already been filed and are fully briefed. Continuing to address motions on discovery disputes at this late stage disrupts the Court’s ability to advance the litigation.

          III. CONCLUSION

          For the reasons discussed above, Plaintiffs’ motion to compel is DENIED as untimely.

          IT IS SO ORDERED.

if the court feels under the circumstances of this case that the meet and confer that was held was insufficient, and another meet and confer would resolve this matter without judicial interference [sic], a prompt order denying the motion without prejudice and directing another meet and confer is agreeable to Plaintiffs’ counsel .

Id. (emphasis added). Plaintiffs make no effort to square their current assertions of error with their previous agreement to the denial of the underlying motion to compel.