United States District Court, S.D. West Virginia, Huntington Division
ANGELA THACKER, as Personal Representative of the Estate of RABEN CRISEL, Plaintiff,
SEVENTEENTH STREET ASSOCIATES, LLC d/b/a HUNTINGTON HEALTH AND REHABILITATION CENTER; SAVASENIORCARE ADMINISTRATIVE SERVICES, LLC; and SAVASENIORCARE CONSULTING, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
A. EIFERT UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion to Compel, (ECF
No. 71), seeking supplemental discovery responses from
Defendant Seventeenth Street Associates, LLC d/b/a Huntington
Health and Rehabilitation Center (“HHRC”). HHRC
has filed a response in opposition to the motion, (ECF No.
79), and Plaintiff has replied. (ECF No. 82). The issues are
clear; therefore, oral argument is unnecessary, and this
matter is ready for disposition. For the following reasons,
the Court DENIES Plaintiff's Motion to Compel.
February 29, 2016, Plaintiff served HHRC with interrogatories
and requests for the production of documents. (ECF No. 79-1).
HHRC served responses to Plaintiff's discovery requests
on March 30, 2016. (ECF No. 79-2 at 15). Five days later,
Plaintiff's counsel sent an email to HHRC's counsel,
indicating that certain answers were inadequate. (ECF No.
79-3). Consequently, Plaintiff's counsel asked for
supplementation. HHRC's counsel agreed to supplement some
of the responses, but refused to provide Plaintiff with all
of the information she sought in the discovery requests. (ECF
No. 79-4). On April 27, 2016, HHRC served supplemental
responses, providing a portion of the requested information
and reasserting objections to the production of the remaining
materials. (ECF No. 79-5).
14, 2016, seventy-eight days after service of the
supplemental responses, Plaintiff's counsel wrote a
letter in “follow up” to the original discovery
dispute raised in April. (ECF No. 79-6). In the letter,
counsel indicated that Plaintiff had never received the
supplemental responses promised by HHRC. Counsel asked that
the responses be supplied no later than July 27, 2016, or
Plaintiff would file a motion to compel. (Id. at 4).
On July 18, 2016, HHRC's counsel sent an email to
Plaintiff's counsel, informing her that supplemental
answers had been served in April and offering to resend them.
(ECF No. 79-7). Plaintiff's counsel responded to the
email on July 27, 2016, stating that the April supplement was
not in the office file, and thanking HHRC's counsel for
notifying them. (Id.). Plaintiff's counsel
advised that she still needed a supplement to one request for
the production of documents; that being, number 27.
other correspondence, emails, or similar communications are a
part of the record before this Court; however, Plaintiff
states in her reply memorandum that “[d]efense counsel
did not outright reject any additional compromise on
remaining discovery until an in-person meeting on November 3,
2016. Thus, it was Plaintiff's good faith belief that any
Motions to Compel before this date would be premature.”
(ECF No. 82 at 2) (citing LR Civ P 7.1(a)(1)). Plaintiff
filed her motion to compel on November 10, 2016. (ECF No.
LR Civ P 7.1(a)(1) addresses motion practice in general, LR
Civ P 37.1(c) specifically governs the timeliness of motions
to compel discovery responses. LR Civ P. 37.1(c) provides, in
relevant part, that “[m]otions to compel or other
motions in aid of discovery not filed within 30 days after
the discovery response or disclosure requirement was due are
waived.” LR Civ P 37.1(c). Under the Local Rules of
this Court, the only precursor to filing a motion to compel
is a mandatory meet-and-confer session. LR Civ P 37.1(b)
states that “[b]efore filing any discovery motion
… counsel for each party shall make a good faith
effort to confer in person or by telephone to narrow the
areas of disagreement to the greatest possible extent. It
shall be the responsibility of counsel for the moving party
to arrange for the meeting.” LR Civ P 37.1(b). Nothing
in the Local Rules suggests that the obligation to meet and
confer in any way extends the thirty-day period in which to
file a motion to compel.
case, adding three days for service by mail, Plaintiff had no
later than May 9, 2016 in which to file a motion to compel.
By that time, Plaintiff knew that HHRC was not amenable to
providing all of the information requested. The parties had
not spoken by telephone, or met in person, as required;
however, the communications between the parties made clear
what information HHRC would agree to provide in its
supplemental responses, and what information HHRC refused to
provide. (ECF No. 79-4). Notwithstanding the remaining
disputes, Plaintiff failed to file a motion to compel until
November, six months after expiration of the deadline. During
that period, no stipulations were entered extending the
thirty-day deadline, and no motion seeking an extension of
the deadline was filed. Accordingly, Plaintiff waived her
right to file a motion to compel.
occasion, a party's waiver has been excused; for example,
when the record shows great tenacity and diligence by the
party seeking responses, robust and ongoing discussions
between the parties in an effort to resolve the disputes, a
misunderstanding between the parties, or some other
circumstance that justifies consideration by the Court of a
motion to compel filed after the deadline. However, those
occasions are not common, and this case does not present such
circumstances. Despite Plaintiff's representations to the
contrary, the record indicates that Plaintiff simply failed
to follow-up on the discovery responses between April and
July. When Plaintiff's counsel received a set of
supplemental responses in July, she advised HHRC's
counsel that Plaintiff still wanted additional information in
response to request for production of documents no. 27. The
information was not forthcoming, yet Plaintiff waited another
three months and two weeks before filing the motion to
compel. Then, the motion to compel not only requested
supplementation of request for production of documents no.
27, but also asked the Court to compel a supplemental
response to request no. 24, a response that was not raised as
an issue in Plaintiff's July correspondence. Clearly,
Plaintiff has no good excuse for failing to timely file a
motion to compel. Considering the length of the delay and the
current posture of the case, Plaintiff's motion is,
therefore, denied as untimely.
Clerk is instructed to provide a copy of this Memorandum