United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion for Sanctions for
Defendants' Failure to Produce Fed.R.Civ.P. 30(B)(6)
Representative (R. Doc. 108) filed on October 26, 2018. The
motion is opposed. (R. Doc. 134). Plaintiff has filed a
Reply. (R. Doc. 180-1).
the instant motion, Plaintiff seeks sanctions regarding
Defendants' refusal to provide deposition testimony on
Topics 7 and 9 of the deposition notice. In the alternative,
Plaintiff moves the Court to compel defendants to produce a
witness to testify regarding the contested topics.
Court set the original deadline to complete non-expert
discovery in this action on January 27, 2017, eventually
extending the deadline to December 15, 2017. (R. Docs. 14,
31, 35, 46, 87).
24, 2018, the Court extended the deadline for taking
non-expert depositions in this action, including the Rule
30(b)(6) deposition of the opposing parties, to October 1,
2018. (R. Doc. 93 at 5). This limited extension was granted
despite that the deadline to complete all non-expert
discovery had passed. Plaintiff objected to the limited
relief provided. (R. Doc. 96). The district judge affirmed
the magistrate judge's order. (R. Doc. 97).
August 17, 2018, Plaintiff served a Second Amended Deposition
Notice setting Defendants' Rule 30(b)(6) depositions to
take place on September 12-14, 2018. (R. Doc. 108-12).
September 11, 2018, Defendants objected to Topics 7 and 9 in
the notice. (R. Doc. 108-15). The Rule 30(b)(6) depositions
took place on September 12-14, 2018. (R. Docs. 108-6, 108-13,
did not file the instant motion on or before the Court's
deadline to conduct non-expert depositions in this action.
Instead, Plaintiff waited until October 26, 2018, the
deadline to file dispositive motions, to file the instant
discovery motion. Plaintiff's motion fails to address
timeliness and provides no exceptional circumstances for
filing the instant discovery motion twenty-six days after the
specific deadline set to complete non-expert dispositions in
this action. Raised for the first time in its Reply brief,
Plaintiff argues that “Defendants' conduct shows a
calculated effort to deprive Physicians Alliance of
information related to Defendants' affirmative
defenses.” (R. Doc. 180-1 at 2). In support of this
position, Plaintiff also asserts that the parties engaged in
settlement discussions and conducted a significant number of
depositions during the time within which a timely motion
could have been filed.
the parties conducted a large number of depositions at the
end of discovery is not a basis for failing to comply with
the applicable filing deadline. Those discovery deadlines
have been set or extended numerous times, and it has been
made clear to the parties that the deadlines in place will be
enforced. The discovery topics at issue were objected to by
the defense, who provided a witness at the deposition that
did not provide answers on those topics. Nothing prevented a
discovery related motion from being filed within the two
weeks following the deposition, and the Court finds no
exceptional circumstances justify the additional delay until
October 26, 2018, the deadline to also file dispositive and
the Court will deny the instant motion as untimely.
See LR 26(d)(1) (“Absent exceptional
circumstances, no motions relating to discovery, including
motions under Fed.R.Civ.P. 26(c), 29, and 37, shall be filed
after the expiration of the discovery deadline, unless they
are filed within seven days after the discovery deadline and
pertain to conduct during the final seven days of
discovery.”); see also Price v. Maryland Cas.
Co., 561 F.2d 609, 611 (5th Cir. 1977) (affirming the
denial of motion to renew discovery filed after the close of
discovery where party had been “inexcusably dilatory in
his efforts”); Days Inn Worldwide, Inc. v. Sonia
Investments, 237 F.R.D. 395, 396-99 (N.D. Tex. 2006)
(motion to compel was untimely filed two weeks after the
discovery deadline; motion should have been filed within
discovery deadline); Wells v. Sears Roebuck and Co.,
203 F.R.D. 240, 241 (S.D.Miss. 2001) (“[I]f the conduct
of a respondent to discovery necessitates a motion to compel,
the requester of the discovery must protect himself by timely
proceeding with the motion to compel. If he fails to do so,
he acts at his own peril.”).
foregoing reasons, IT IS ORDERED that Plaintiff's Motion
for Sanctions for Defendants' Failure to Produce