Opinion
Case No.: 2:19-cv-00018-GMN-NJK
2020-12-16
James M. HERNDON, Plaintiff(s), v. CITY OF HENDERSON, et al., Defendant(s).
Jolene J. Manke, Hale Injury Law, Henderson, NV, Marjorie L. Hauf, Ganz & Hauf, Micah S. Echols, Claggett & Sykes Law Firm, Las Vegas, NV, for Plaintiff(s). Nancy D. Savage, City of Henderson Attorney's Office, Henderson, NV, for Defendant(s).
Jolene J. Manke, Hale Injury Law, Henderson, NV, Marjorie L. Hauf, Ganz & Hauf, Micah S. Echols, Claggett & Sykes Law Firm, Las Vegas, NV, for Plaintiff(s).
Nancy D. Savage, City of Henderson Attorney's Office, Henderson, NV, for Defendant(s).
ORDER
[Docket No. 53]
Nancy J. Koppe, United States Magistrate Judge
Pending before the Court is Plaintiff's motion to compel discovery. Docket No. 53. Defendants filed a response in opposition. Docket No. 57. Plaintiff filed a reply. Docket No. 60. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, Plaintiff's motion to compel is hereby DENIED .
I. BACKGROUND
This case arises out of an attempted robbery at the Sportsman's Warehouse on January 14, 2018. Plaintiff was employed as an assistant manager at the store and had been alerted by the loss prevention manager of a live attempt to steal merchandise. Police were called and arrived at the store. When the police confronted the suspect, he began to run through the store. The suspect ran into a mannequin and lost his footing, at which time Plaintiff jumped on top of him in an effort to deescalate the situation. Nonetheless, Plaintiff alleges that some of the police officers then jumped on top of Plaintiff and began beating him, while two other officers also allegedly assaulted Plaintiff during this incident. As a result of this alleged incident, Plaintiff asserts that he suffered significant injury.
Unless noted otherwise, the facts in this background section are derived from the allegations in the First Amended Complaint. Docket No. 13.
On January 8, 2019, Plaintiff brought this lawsuit against the City of Henderson, along with the police officers themselves, alleging constitutional violations, municipal liability, and various state law tort causes of action. Docket No. 1. On June 5, 2019, Plaintiff filed an amended complaint. Docket No. 13.
On August 22, 2019, counsel held their discovery conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure. Docket No. 20 at 2. Initial disclosures were due by September 5, 2019. Docket No. 20 at 2. On September 17, 2019, the Court entered a scheduling order allowing an extended discovery period of 270 days such that the discovery cutoff was set at April 27, 2020. Docket No. 23 at 2-3. The Court set a dispositive motion deadline of May 28, 2020. Id. at 3.
Hence, the parties were free to engage in discovery at that time. See Fed. R. Civ. P. 26(d)(1).
The presumptively reasonable discovery period is 180 days measured from the date the first defendant answers or otherwise appears. See, e.g. , Local Rule 26-1(b)(1).
On February 6, 2020, the parties filed a stipulation seeking to extend the deadlines in the scheduling order by an additional 120 days. Docket No. 26. On February 7, 2020, the Court denied that stipulation. Docket No. 27. The Court highlighted the need to proceed in discovery with diligence and the importance of complying with the established timetable:
A scheduling order is not a frivolous piece of paper. Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604, 610 (9th Cir. 1992). "The use of orders setting a firm discovery cutoff date is commonplace, and has impacts generally helpful to the orderly progress of litigation, so that the enforcement of such an order should come as a surprise to no one." Cornwell v. Electra Cent. Credit Union , 439 F.3d 1018, 1027 (9th Cir. 2006).
Id. at 1. The Court rejected on its merits the assertion that good cause existed for the requested extension that was premised on counsel prioritizing time to other cases and further noted that the parties had done virtually no discovery during the 169 days in which discovery had already been open. See id. at 2-3 & n.3.
On February 13, 2020, the parties filed a renewed stipulation seeking to extend the deadlines in the scheduling order by 75 days. Docket No. 28. On February 24, 2020, the Court held a hearing at which it again expressed its concern with the lack of diligence in conducting discovery:
The Court also notes that the Court already gave an extended period of time for discovery. This is not a complex case. It's a fairly straightforward case. And there appears to have been a great lack of diligence in this case. While the Court cannot find that the parties were diligent ... in this case, the Court will—just to keep the case moving—will grant this request. But the Court will not grant any further extensions. The Court expects the parties to move forward immediately and the Court will not make any further exceptions regarding good cause. There simply is not good cause in this case, but the Court is simply—in order to allow resolution on its merits—the Court is going to allow it this one time. So, the Court will grant the stipulation ... but the parties are cautioned that they need to immediately start working and they need to become diligent with the discovery on this case.
Hearing Rec. (2/24/2020) at 9:38 – 9:39 a.m. These concerns were repeated in the minutes of the hearing, which expressly reflect that "the parties must immediately move discovery forward with proper diligence" and the anticipation that "NO FURTHER EXTENSIONS WILL BE GRANTED ." Docket No. 30 (emphasis in original). With those caveats, the Court extended the discovery cutoff to July 10, 2020, and extended the dispositive motion deadline to August 11, 2020. Id.
A transcript of the hearing is not available, so citation is made to the audio recording.
On March 27, 2020, the parties filed an additional stipulation to extend the deadlines in the scheduling order by 30 days. Docket No. 31. In particular, the parties expressed concern as to their ability to complete discovery by the established deadlines in the light of the then-recent emergence in Nevada of the COVID-19 pandemic. See id. at 5-9. On March 30, 2020, the Court granted that stipulation, extending the discovery cutoff to August 10, 2020, and extending the dispositive motion deadline to September 10, 2020. Docket No. 32.
On July 1, 2020, the parties filed a stipulation for a third extension of the deadlines in the scheduling order, this time seeking an extension of the discovery cutoff only with respect to certain depositions and subpoenas. Docket No. 36. On July 2, 2020, the Court allowed that partial extension, resulting in the discovery cutoff generally remaining on August 10, 2020, but extending the discovery cutoff for limited purposes to October 2, 2020, and extending the dispositive motion deadline to November 2, 2020. Docket No. 37 at 12. No further extensions were provided. Hence, the discovery period ended as a general matter on August 10, 2020, and the discovery period ended completely on October 2, 2020.
On October 12, 2020, Plaintiff filed a motion to compel seeking personnel files for the Defendant officers and other documents regarding prior use of force by these officers, as well as seeking to compel interrogatory responses. Docket No. 49. On October 13, 2020, the Court denied that motion for failure to demonstrate that a rule-compliant meet-and-confer had been conducted and for failure to address whether the motion was timely. Docket No. 50. On October 22, 2020, Plaintiff renewed the motion to compel. Docket No. 51. On October 26, 2020, the Court again denied the motion for failure to address whether the motion was timely. Docket No. 52. On November 2, 2020, the day of the dispositive motion deadline, Plaintiff again renewed his motion to compel this discovery. Docket No. 53.
It is this second renewed motion to compel that is presently before the Court. The motion seeks relief with respect to discovery requests that were served on February 27, 2020. See Docket No. 53-1 at 13 (requests for production); Docket No. 53-2 at 10 (interrogatories). Given an agreed extension, the responses to that written discovery were served on May 7, 2020. Docket No. 57-4 at 57 (responses to requests for production); Docket No. 57-3 at 27 (interrogatory responses). Plaintiff served a letter first disputing the sufficiency of Defendants’ responses to this discovery on September 24, 2020. Docket No. 57-5; see also Docket No. 57-1 at ¶ 5. Counsel thereafter exchanged further correspondence on the dispute. Docket Nos. 53-9, 53-10, 53-11. Plaintiff's counsel conducted the required meet-and-confer on October 19, 2020. Mot. at 5. As noted above, the instant motion was filed on November 2, 2020.
II. STANDARDS
Management of the docket and avoidance of unnecessary delays in the administration of justice are matters of critical importance to district courts. Martin Family Trust v. Heco/Nostalgia Enters. Co. , 186 F.R.D. 601, 603 (E.D. Cal. 1999) ; see also Sherman v. United States , 801 F.2d 1133, 1135 (9th Cir. 1986) (highlighting that Rule 16 of the Federal Rules of Civil Procedure is designed to "encourage forceful judicial management"). Advancing these objectives requires by necessity a determination of how to sequence motion practice and the phases of litigation to best achieve an orderly resolution of the case. See Johnson , 975 F.2d at 610-11 ; see also Wong v. Regents of Univ. of Cal. , 410 F.3d 1052, 1060 (9th Cir. 2005).
The Court has broad discretionary power to control discovery. Little v. City of Seattle , 863 F.2d 681, 685 (9th Cir. 1988). "A district court's case-management powers apply with particular force to the regulation of discovery and the reconciliation of discovery disputes." Faigin v. Kelly , 184 F.3d 67, 84 (1st Cir. 1999). "Because discovery problems are presented in every case, and because in many cases discovery must close before a district court can consider dispositive motions with all evidence in hand, district courts need to be able to control or limit discovery in order to advance the progress of their trial dockets." Cornwell , 439 F.3d at 1027. "District court oversight is encouraged to avoid ‘protracted discovery, the bane of modern litigation.’ " Garcia v. Serv. Emps. Int'l Union , 332 F.R.D. 351, 354 (D. Nev. 2019) (quoting Rossetto v. Pabst Brewing Co. , 217 F.3d 539, 542 (7th Cir. 2000) ).
With respect to a motion to compel discovery, there is no specific deadline enunciated in the governing rules and a determination as to the timeliness of such a motion is left to the exercise of judicial discretion. Wyles v. Sussman , 445 F. Supp. 3d 751, 755 (C.D. Cal. 2020). That determination is guided by whether the movant unduly delayed in seeking relief. Gault v. Nabisco Biscuit Co. , 184 F.R.D. 620, 622 (D. Nev. 1999). A finding of untimeliness, standing alone, dooms a motion to compel regardless of its substantive merits. KST Data, Inc. v. DXC Tech. Co. , 344 F. Supp. 3d 1132, 1136 n.1 (C.D. Cal. 2018). Indeed, courts "will often deny Rule 37(a) motions because the moving party delayed too long." V5 Techs. v. Switch, Ltd. , 332 F.R.D. 356, 360 (D. Nev. 2019) (quoting 8B Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE , § 2285 (3d ed. Supp. 2019)).
Courts are permitted to raise the potential untimeliness of a motion to compel sua sponte. Garcia , 332 F.R.D. at 354 n.2.
Although a standard of "undue delay" is somewhat amorphous, a few guideposts have developed in this District's jurisprudence regarding the timeliness of a motion to compel. First, a motion to compel filed during the discovery period (i.e. , prior to expiration of the discovery cutoff) will generally be considered timely. See Gault , 184 F.R.D. at 622 ; see also V5 Technologies , 332 F.R.D. at 364-65 (concluding that a motion to compel filed five months before the discovery cutoff was timely based on the circumstances of that case even though it was filed 11 months after the discovery dispute arose). Second, a motion to compel filed after the dispositive motion deadline is presumptively untimely because continuing to entertain discovery matters at that juncture interferes with the advancement of the case to the merits phase. See Garcia , 332 F.R.D. at 354 ; see also Gray v. Cox , No. 2:14-cv-01094-JAD-PAL, 2016 WL 4367236, at *3 (D. Nev. Aug. 12, 2016) (concluding that a pro se prisoner's motion to compel filed the day after the dispositive motion deadline was untimely when filed seven weeks after the discovery dispute reached an impasse).
It bears repeating that these are not bright-line rules and circumstances of a particular case may warrant a different outcome. E.g., Fitzpatrick v. Las Vegas Metro. Police Dep't , No. 2:17-cv-01886-JAD-BNW, 2020 WL 560582, at *5 (D. Nev. Feb. 3, 2020) (overruling objection to magistrate judge finding that motion to compel filed after dispositive motion deadline was timely); U.S. E.E.O.C. v. Pioneer Hotel, Inc. , No. 2:11-cv-01588-LRH-GWF, 2014 WL 5045109, at *1-2 (D. Nev. Oct. 9, 2014) (concluding that motion to compel filed on the last day of the discovery period was untimely).
These rules of thumb may be helpful in many cases, but they do not account for a middle period between the discovery cutoff and the dispositive motion deadline. See Local Rule 26-1(b)(4) (providing default schedule by which dispositive motions are due 30 days after the discovery cutoff). Judges do not wander this terrain without a compass, however. Courts are guided by a non-exhaustive list of factors to determine the timeliness of a motion to compel: (1) the length of time since expiration of the discovery deadline; (2) the length of time the moving party has known about the discovery; (3) whether the discovery deadline has been extended; (4) the explanation for the tardiness or delay; (5) whether dispositive motions have been scheduled or filed; (6) the age of the case; (7) any prejudice to the party from whom discovery is sought; and (8) disruption of the Court's schedule. V5 Technologies , 332 F.R.D. at 360-61 (collecting cases). Hence, even though a motion to compel filed before the deadline for dispositive motions predates what is generally the outer limit for seeking such relief, it will be deemed untimely if evaluation of these factors reveals undue delay. See RKF Retail Holdings, LLC v. Tropicana Las Vegas, Inc. , No. 2:14-cv-01232-APG-GWF, 2017 WL 2908869, at *5-6 (D. Nev. July 6, 2017) (analyzing timeliness of motion to compel filed between discovery cutoff and dispositive motion deadline); see also Haviland v. Catholic Health Initiatives-Iowa, Corp. , 692 F. Supp. 2d 1040, 1044 (S.D. Iowa 2010) (denying motion to compel technically filed in compliance with outer deadline as "[d]eadlines do not grant the parties carte blanche rights to demand sizeable discovery requests up to the last possible minute. Discovery is meant to be a balanced and, hopefully, front-loaded process, not one involving deadline brinkmanship").
The existence of this gray area for motions to compel is something of a jurisprudential quirk. "In determining whether a motion to compel has been timely filed, most courts look to the discovery deadline and not the motion-filing deadline." Suzlon Wind Energy Corp. v. Shippers Stevedoring Co. , 662 F. Supp. 2d 623, 661 (S.D. Tex. 2009) (citing Days Inn Worldwide, Inc. v. Sonia Invs. , 237 F.R.D. 395, 397 (N.D. Tex. 2006) (collecting cases)). Indeed, several courts require that a motion to compel be filed sufficiently in advance of the discovery cutoff such that any ordered discovery can be produced by that deadline. See, e.g., Wyles , 445 F. Supp. 3d at 755. Nonetheless, this District has for decades allowed for a more lenient outer limit set at the dispositive motion deadline. Gault , 184 F.R.D. at 622. The undersigned will not upset the apple cart here and will continue to follow the established tripartite approach on which practitioners here have relied: "A motion to compel filed during the discovery period would rarely be considered untimely. ... A motion to compel may be filed after the close of discovery. Absent unusual circumstances, it should be filed before the scheduled date for dispositive motions." Id.
As the multitude of potential considerations evidences, the timeliness of a motion to compel is determined based on "the entire complex of circumstances that gave rise to the motion, and what is untimely in one case may not be in another." In re Sulfuric Acid Antitrust Litig. , 231 F.R.D. 331, 333 (N.D. Ill. 2005). "Because no single rule or deadline can encompass the myriad variations in discovery, magistrate judges are given broad discretion to manage the overall process in the interests of dispatch and fairness." Haviland , 692 F. Supp. 2d at 1044.
III. ANALYSIS
The parties have provided competing views of the timeliness of Plaintiff's motion to compel, including counterarguments with respect to each of the enumerated factors for that analysis. The Court will address each factor in turn.
Plaintiff's briefing is at times scattershot and underdeveloped. The Court has considered all arguments presented. Any argument not explicitly discussed herein has been rejected to the extent it is inconsistent with the outcome of this order. Cf. V5 Techs. v. Switch, Ltd. , 334 F.R.D. 306, 314 n.12 (D. Nev. 2019).
A. TIME SINCE EXPIRATION OF THE DISCOVERY DEADLINE
The cutoff applicable to the discovery now in dispute expired on August 10, 2020. See Docket No. 37 at 12. The instant motion was filed nearly three months later on November 2, 2020. Accordingly, this factor weighs in favor of finding the motion untimely.
Plaintiff claims a shorter time by trying to measure this period from (1) a later discovery cutoff that is inapplicable to the discovery at issue here to (2) earlier attempts at filing this motion to compel that were procedurally and substantively defective. See Mot. at 21. No elaboration is provided to support this strained contention. At any rate, the untimeliness of Plaintiff's motion is not a close call in this case; the Court would find it untimely even viewing its filing in the manner Plaintiff proposes. Cf. Pioneer Hotel , 2014 WL 5045109, at *1-2 (denying motion to compel filed on the discovery cutoff).
B. TIME SINCE THE MOVANT HAS KNOWN ABOUT THE DISCOVERY
The instant motion was filed roughly six months after Defendants served the discovery responses in dispute. Plaintiff strains credulity in characterizing this delay as ordinary, reasonable, or otherwise indicative of timeliness. See Reply at 6 (asserting that "Plaintiff only delayed six months"). One would generally expect that a motion to compel should be filed within a matter of weeks, not half a year after service of the underlying discovery responses. E.g., Chishty v. Tex. Dep't of Aging & Disability Servs. , 562 F. Supp. 2d 790, 797 (E.D. Tex. 2006) (finding motion to compel was unduly delayed when filed 41 days after disputed deposition instruction); Wells v. Sears Roebuck & Co. , 203 F.R.D. 240, 241 (S.D. Miss. 2001) (same for a motion to compel filed 160 days after service of discovery to which no timely response was provided); Gault , 184 F.R.D. at 621-22 (same for motion to compel filed 136 days after receipt of discovery responses); Dynamic Movers, Inc. v. Paul Arpin Van Lines, Inc. , 956 F. Supp. 836, 840 (E.D. Wis. 1997) (same for motion to compel filed four-and-a-half months after receipt of discovery responses). The Court likewise rejects Plaintiff's contention that delaying for "only" six months is indicative of a timely motion to compel. Accordingly, this factor weighs in favor of finding the motion untimely.
In presenting his position, Plaintiff relies one of the undersigned's prior orders issued in a complex antitrust case. See Reply at 6. In that decision, the Court concluded that an 11-month delay in filing a motion to compel "militates strongly against finding that the motion is timely." V5 Technologies , 332 F.R.D. at 364 (emphasis added). That finding does not help Plaintiff here.
C. EXTENSIONS TO THE DISCOVERY CUTOFF
The discovery period in this case was lengthy. The Court allowed an extended discovery period from the outset, Docket No. 23, and then granted three stipulations for further extensions, Docket Nos. 30, 32, 37. Moreover, the Court previously indicated that diligence by the parties was lacking and that they needed to accelerate their discovery efforts. E.g. , Docket No. 30. Accordingly, this factor weighs in favor of finding the motion untimely.
D. EXPLANATION FOR THE TARDINESS OR DELAY
Plaintiff proffers two reasons for the failure to file the instant motion to compel sooner, pointing to purported assurances by defense counsel to supplement and to purported difficulties stemming from the COVID-19 pandemic. Defendant challenges both excuses. For the reasons discussed below, neither excuse is persuasive and this factor weighs in favor of finding the motion untimely.
1. Alleged Representations to Supplement
Plaintiff argues that his counsel had hoped that Defendants would provide the supplemental discovery now sought without the need for motion practice given defense counsel's representations. See Mot. at 20. Plaintiff pointedly asserts that the delay in filing the motion to compel is blamed on defense counsel's "broken promises." See Reply at 7 (emphasis omitted). Defendants dispute the entire premise of this excuse. Resp. at 14. The Court agrees with Defendants.
Courts are acutely aware of the need to curb gamesmanship in the discovery process. E.g., Silvagni v. Wal-Mart Stores, Inc. , 320 F.R.D. 237, 243 n.6 (D. Nev. 2017). In that vein, at least some courts have excused a delay in filing a motion to compel arising out of reasonable reliance on an opposing party's promises to rectify the discovery deficiency. See M2 Software, Inc. v. M2 Commc'ns, L.L.C. , 217 F.R.D. 499, 500 (C.D. Cal. 2003) ; but see Choate v. Nat'l R.R. Passenger Corp. , 132 F. Supp. 2d 569, 574 (E.D. Mich. 2001) ("Repeated promises of an opponent to respond to discovery is an insufficient justification for failing to timely enforce discovery rights"). A movant properly relies on such an excuse only by presenting a firm factual showing that there was an expressed commitment to provide the discovery in dispute on which there was reliance. Purported reliance on vague indications of supplementation is plainly insufficient. See Sonnino v. Univ. of Kan. Hosp. Auth. , 220 F.R.D. 633, 637-38 (D. Kan. 2004).
Plaintiff's argument in this case fails from the start. The discovery responses in dispute were served on May 7, 2020, and the record is clear that there was no discussion regarding these discovery responses until Plaintiff sent a meet-and-confer letter on September 24, 2020. Hence, there was a 140-day canyon between the service of the discovery responses now in dispute and any suggestion that they were deficient. To state the obvious, there were no "promises" made to supplement these responses during this period if there were no discussions about these responses.
Defense counsel attests directly that—prior to this letter—there had been no communications, requests, or demands from Plaintiff's counsel concerning these discovery responses. Docket No. 57-1 at ¶¶ 5, 9-14, 16. The Court rejects Plaintiff's counsel's disingenuous insinuations to the contrary. Plaintiff's counsel attests cryptically that, "[b]etween May 7th and July 16th, my office and counsel for Defendants’ [sic] exchanged a series of letters regarding documents and Defendants’ [sic] supplementing discovery responses. Throughout these letters, [defense counsel] repeatedly indicated [that] she would supplement certain discovery responses and disclose responsive documents. " Mot. at 3 (emphasis added, footnotes omitted). Plaintiff's counsel also attests that there were oral discussions in which defense counsel indicated that "she would ‘look for’ my documents and provide responsive documents. " Id. (emphasis added). Plaintiff's counsel then extrapolates that any delay was justified given "certain allowances " provided to opposing counsel. Id. at 23 (emphasis added). These representations all lack a critical modifier that the documents, responses, and/or allowances relate to the discovery dispute currently before the Court. Plaintiff's counsel's vague and unsupported assertions are plainly insufficient, cf. Sonnino , 220 F.R.D. at 637, particularly when countered by a direct declaration from opposing counsel attesting to the complete lack of any pertinent communications during this period.
Plaintiff also relies on a letter dated October 1, 2020, in which defense counsel suggests an openness to supplementation. See Docket No. 53-9. Defense counsel disputes Plaintiff's characterization of the letter. Docket No. 57-1 at ¶ 18. At any rate, on October 4, 2020, defense counsel disabused Plaintiff's counsel of any notion that these discovery responses would be supplemented. Docket No. 53-10. Plaintiff makes no persuasive showing that the situation during this three-day period negates the undue delay in failing to file the motion to compel for half a year.
Making matters worse for Plaintiff, his own recitation of the facts shows on its face that defense counsel was receptive to Plaintiff's counsel's discovery concerns when they were actually presented and was cooperative in providing supplementation. See Mot. at 3. According to Plaintiff, defense counsel promised to supplement during this period and "[o]n multiple occasions ... did so." Id. ; see also Docket No. 57-1 at ¶¶ 12-13. It is counterintuitive—to stay the least—for Plaintiff to allege discovery gamesmanship based on defense counsel repeatedly keeping her word on the promises to supplement that were actually made.
Given these circumstances, Plaintiff's reliance on purported "broken promises" does not provide a good excuse for the delay.
2. Pandemic-Related Restrictions
Plaintiff also argues that the delay in filing the motion to compel stems from the current pandemic. Indeed, Plaintiff represents that "the COVID-19 pandemic is the primary culprit for the delay in filing Plaintiff's Motion to Compel." Mot. at 22. Defendants dispute the premise of this excuse. Resp. at 14. The Court agrees with Defendants.
"The Court is mindful of the unprecedented magnitude of the COVID-19 pandemic and the extremely serious health risks it presents." United States v. Boatwright , ––– F. Supp. 3d ––––, ––––, 2020 WL 1639855, at *5 (D. Nev. Apr. 2, 2020). Nonetheless, the emergence of the pandemic has not suspended governing standards nor has it obviated the need for required factual showings. Courts will not grant relief by uncritically accepting pandemic-related excuses; mere reference to the pandemic is not enough. E.g., Swenson v. GEICO Cas. Co. , 336 F.R.D. 206, 210 (D. Nev. 2020).
The Court declines to endorse Plaintiff's conclusory and unsupported reliance on the pandemic in his effort to win relief here. As noted above, the instant motion was filed roughly six months after these discovery responses were served. Plaintiff did not even dispute the sufficiency of those responses until 140 days after they were served. Plaintiff attempts to explain away months of activity with hollow platitudes, such as exclaiming that "COVID-19 has essentially disrupted life as it is known today." Reply at 6. Such bald assertions do not show that this motion was filed with appropriate speed. Moreover, Plaintiff stumbles in the few instances where he tries to provide specific facts to show pandemic-related delay. For example, Plaintiff indicates that his counsel was forced to transition to remote work on March 18, 2020, and that the " ‘growing pains’ of working remotely took a few weeks to iron out." Mot. at 20. Plaintiff makes no effort to connect these dots with his delay in seeking supplementation of discovery responses that were not even served until May (i.e. , a month or so after this "iron[ing] out" period). Plaintiff's reliance on pandemic-related disruption as an excuse for his delay is unsupported.
For the first time in reply, Plaintiff's counsel asserts that her office "was closed in June due to a coronavirus outbreak," and that she and her staff "resum[ed] normal operations" after testing negative. See Reply at 6. The Court does not generally address arguments raised for the first time in reply. Bazuaye v. I.N.S. , 79 F.3d 118, 120 (9th Cir. 1996). At any rate, the representation is not supported by declaration, does not address counsel being already set up for remote work at that point, and would appear to account for only a short subset of the half-year delay at issue.
Plaintiff veers even further afield in suggesting that the timing of the instant motion should be excused because defense counsel has purportedly been adjusting to lawyering during the pandemic. See, e.g. , Mot. at 20-21; but see Docket No. 57-1 at ¶ 15 (declaration from defense counsel disputing the characterization). Although the intent is not always entirely clear, these ubiquitous assertions seem to be a petty attempt to dirty opposing counsel in an effort to distract from the shortcomings of Plaintiff's own attorneys. Such a tactic offers no shelter to Plaintiff. Cf. Rood v. Liberty Ins. Underwriters, Inc. , No. 2:16-cv-02586-JAD-NJK, 2018 U.S. District Lexis 110332 at *2-3 (D. Nev. July 2, 2018) (rejecting similar argument as tantamount to Pee Wee Herman's childish retort of "I know you are, but what am I"). Plaintiff's assertions that defense counsel experienced challenges in working during this pandemic do not erase Plaintiff's undue delay in filing the motion to compel.
Given these circumstances, Plaintiff's reliance on the pandemic does not provide a good excuse for the delay.
E. FILING OR SCHEDULING OF DISPOSITIVE MOTIONS
Plaintiff filed the motion to compel on the dispositive motion deadline a few hours before motions for summary judgment were filed. Docket Nos. 53, 54. Briefing on those motions is underway and they remain pending. Accordingly, this factor weighs in favor of finding the motion untimely.
F. AGE OF THE CASE
This is an old case. It was filed almost two years ago, Docket No. 1, and the discovery process kicked off roughly 16 months ago, see Docket No. 20 at 2 (noting Rule 26(f) conference of August 22, 2019). The vast majority of cases filed in this District should be well beyond the discovery phase at this point, as the presumptively reasonable discovery period is 180 days from the date of the first appearance by a defendant. See Local Rule 26-1(b)(1). Accordingly, this factor weighs in favor of finding the motion untimely.
Plaintiff's position is essentially that no time during which the COVID-19 pandemic has been in existence should be counted with respect to the age of the case. See Mot. at 23. There is no support cited for such a proposition. The Court appreciates that the current health crisis has created some obstacles to the practice of law, but litigants remain capable of advancing discovery with diligence and filing motion practice at appropriate junctures. Cf. Swenson , 336 F.R.D. at 210 ("litigants are adapting to new ways to practice law" so that they can "keep cases moving forward notwithstanding pandemic-related restrictions"); United States v. K.O.O. Constr., Inc. , 445 F. Supp. 3d 1055, 1057 (S.D. Cal. 2020) (holding that parties lacked diligence in conducting discovery notwithstanding the existence of pandemic-related restrictions).
G. PREJUDICE TO THE PARTY FROM WHOM DISCOVERY IS SOUGHT
The parties next dispute whether Defendant would be prejudiced given the timing of the motion to compel. Plaintiff argues without elaboration that there would be no prejudice because Defendants should have provided the discovery already. See Mot. at 23. Defendants argue that there is a risk of prejudice because an order granting the motion to compel would effectively reopen discovery only for Plaintiff and notwithstanding the pendency of potentially dispositive motions for summary judgment. See Resp. at 15. Defendants have the better argument.
It is incumbent on courts to enforce the applicable rules and deadlines for all litigants, as doing otherwise creates an unfair playing field. See Legault v. Zambarano , 105 F.3d 24, 28-29 (1st Cir. 1997). Reverting a case from the merits phase back to the discovery phase without sufficiently good reason is generally prejudicial to the non-movant who must now be subjected to further discovery. See Suntrust Bank v. Blue Water Fiber, L.P. , 210 F.R.D. 196, 201 (E.D. Mich. 2002) ; see also Mash Enters., Inc. v. Prolease Atl. Corp. , No. Civ. A. 01-2437, 2003 WL 251944, at *3 (E.D. Pa. Jan. 31, 2003). Moreover, as discussed more fully below, there is a risk that resolving this discovery dispute on its merits may impact the summary judgment briefing, which would also prejudice Defendants. Banks v. CBOCS West, Inc. , No. 01 C 0795, 2004 WL 723767, at *3 (N.D. Ill. Apr. 1, 2004).
Accordingly, this factor weighs in favor of finding the motion untimely.
H. DISRUPTION OF THE COURT'S SCHEDULE
The parties also dispute whether resolution of the motion to compel on its merits would disrupt the Court's schedule. The parties focus their arguments in briefing this factor on different deadlines and phases of litigation. Defendants argue that allowing resolution of the motion would disrupt the schedule set for discovery to be completed. Resp. at 16. Plaintiff points out that trial has not been set and could be delayed given pandemic-related restrictions. Mot. at 23, 24; Reply at 6-7; see also Third Am. Temp. Gen. Order 2020-03 (D. Nev. Nov. 12, 2020) (temporarily suspending jury trials).
In addition, motions for summary judgment have already been filed, as have the responses thereto. Docket Nos. 54-55, 70-71. Defendants note potential disruption from the motion to compel given the filing of these dispositive motions. See Resp. at 16. Plaintiff's reply raises a strong possibility that the summary judgment schedule would indeed be disrupted, emphatically referencing the disputed discovery as significant to the arguments presented in one of the motions for summary judgment:
Plaintiff, however, is prejudiced without these documents and interrogatory answers. Specifically, Plaintiff is unable to present evidence to a jury about a potential pattern of excessive force within the Henderson Police Department. If there is a pattern that would point to the need [sic] to a specific "policy or custom" as discussed in Defendant's Motion for Summary Judgment (ECF # 6) [sic]: "such as the City of Henderson, may only be subject to liability under Section 1983 when it has an existing policy or custom, which results in the alleged constitutional tort and that policy or custom is the moving force."
Reply at 5-6; see also Reply at 2-3. In short, Plaintiff admits that—without the discovery now in dispute—he lacks any evidence on a key issue for his claim against the City, which plainly bears on the summary judgment arguments. See Fed. R. Civ. P. 56(a) (outlining summary judgment standard as a lack of a "genuine dispute as to any material fact"). Plaintiff's assertion raises the distinct possibility that an order compelling the disputed discovery would lead to efforts to supplement the summary judgment briefing or, if the motion for summary judgment is granted without evaluation of such discovery, to move for reconsideration of that ruling. Such a risk of disruption to the summary judgment process militates in favor of finding the motion to compel untimely. See, e.g., Garcia , 332 F.R.D. at 355 ("[c]ontinuing to address motions on discovery disputes at this late stage disrupts the Court's ability to advance the litigation"). Accordingly, this factor weighs in favor of finding the motion untimely.
The factors identified for addressing the timeliness of a motion to compel are non-exhaustive. See V5 Technologies , 332 F.R.D. at 360. Nonetheless, to the extent Plaintiff is arguing that the importance of the discovery favors a finding that his motion to compel is timely, the Court disagrees. See Days Inn , 237 F.R.D. at 399 ("Although [the movant] argued that it had a strong need for the documents, which appear relevant, this factor has not generally been considered by courts, and the alleged importance of the documents appears inconsistent with the delay in seeking the documents"); see also Cornwell , 439 F.3d at 1027 (holding that district court acted "well within its sound discretion" in denying request to reopen the discovery cutoff for lack of diligence, "even in the face of requested supplemental discovery that might have revealed highly probative evidence").
IV. CONCLUSION
Weighing the above considerations, the Court finds that Plaintiff unduly delayed in bringing his motion to compel and it is properly rejected as untimely. This is an old case in which discovery has already been extended several times. The discovery responses at issue were provided six months prior to the filing of the instant motion and Plaintiff advances no good reason for the delay. The motion was filed after expiration of the discovery cutoff and on the deadline for dispositive motions. Motions for summary judgment are pending. Addressing the motion on its merits raises potential risk of prejudice to Defendants and may disrupt the established schedule for the case. Accordingly, Plaintiff's motion to compel is hereby DENIED as untimely.
Given that the motion to compel is untimely, the Court expresses no opinion as to the merits of the other arguments presented.
IT IS SO ORDERED.