Thacker et al v. Seventeenth Street Associates, LLC, No. 3:2015cv13388 - Document 84 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION and ORDER denying Plaintiff's 71 MOTION to Compel Defendants to provide full and complete responses to Plaintiff's First Set of Interrogatories and Request for Production of Documents. Signed by Magistrate Judge Cheryl A. Eifert on 12/14/2016. (cc: counsel of record) (jsa)
Download PDF
<![CDATA[
Thacker et al v. Seventeenth Street Associates, LLC Doc. 84 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION AN GELA TH ACKER, as Pe rs o n al Re p re s e n tative o f th e Es tate o f RABEN CRISEL, Plain tiff, v. Cas e N o .: 3 :15-cv-13 3 8 8 SEVEN TEEN TH STREET ASSOCIATES, LLC d / b/ a H U N TIN GTON H EALTH AN D REH ABILITATION CEN TER; SAVASEN IORCARE AD MIN ISTRATIVE SERVICES, LLC; an d SAVASEN IORCARE CON SU LTIN G, LLC, D e fe n d an ts . MEMORAN D U M OPIN ION an d ORD ER Pending before the Court is Plaintiff’s Motion to Com pel, (ECF No. 71), seeking supplem ental 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 m otion, (ECF No. 79), and Plaintiff has replied. (ECF No. 82). The issues are clear; therefore, oral argum ent is unnecessary, and this m atter is ready for disposition. For the following reasons, the Court D EN IES Plaintiff’s Motion to Com pel. On February 29, 20 16, Plaintiff served HHRC with interrogatories and requests for the production of docum ents. (ECF No. 79-1). HHRC served responses to Plaintiff’s discovery requests on March 30 , 20 16. (ECF No. 79-2 at 15). Five days later, Plaintiff’s 1 Dockets.Justia.com counsel sent an em ail to HHRC’s counsel, indicating that certain answers were inadequate. (ECF No. 79-3). Consequently, Plaintiff’s counsel asked for supplem entation. HHRC’s counsel agreed to supplem ent som e of the responses, but refused to provide Plaintiff with all of the inform ation she sought in the discovery requests. (ECF No. 79-4). On April 27, 20 16, HHRC served supplem ental responses, providing a portion of the requested inform ation and reasserting objections to the production of the rem aining m aterials. (ECF No. 79-5). On J uly 14, 20 16, seventy-eight days after service of the supplem ental 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 supplem ental responses prom ised by HHRC. Counsel asked that the responses be supplied no later than J uly 27, 20 16, or Plaintiff would file a m otion to com pel. (Id. at 4). On J uly 18, 20 16, HHRC’s counsel sent an em ail to Plaintiff’s counsel, inform ing her that supplem ental answers had been served in April and offering to resend them . (ECF No. 79-7). Plaintiff’s counsel responded to the em ail on J uly 27, 20 16, stating that the April supplem ent was not in the office file, and thanking HHRC’s counsel for notifying them . (Id.). Plaintiff’s counsel advised that she still needed a supplem ent to one request for the production of docum ents; that being, num ber 27. No other correspondence, em ails, or sim ilar com m unications are a part of the record before this Court; however, Plaintiff states in her reply m em orandum that “[d]efense counsel did not outright reject any additional com prom ise on rem aining discovery until an in-person m eeting on Novem ber 3, 20 16. Thus, it was Plaintiff’s good faith belief that any Motions to Com pel before this date would be prem ature.” (ECF No. 82 at 2) (citing LR Civ P 7.1(a)(1)). Plaintiff filed her m otion to com pel on Novem ber 10 , 2 20 16. (ECF No. 71). While LR Civ P 7.1(a)(1) addresses m otion practice in general, LR Civ P 37.1(c) specifically governs the tim eliness of m otions to com pel discovery responses. LR Civ P. 37.1(c) provides, in relevant part, that “[m ]otions to com pel or other m otions in aid of discovery not filed within 30 days after the discovery response or disclosure requirem ent was due are waived.” LR Civ P 37.1(c). Under the Local Rules of this Court, the only precursor to filing a m otion to com pel is a m andatory m eet-and-confer session. LR Civ P 37.1(b) states that “[b]efore filing any discovery m otion … counsel for each party shall m ake a good faith effort to confer in person or by telephone to narrow the areas of disagreem ent to the greatest possible extent. It shall be the responsibility of counsel for the m oving party to arrange for the m eeting.” LR Civ P 37.1(b). Nothing in the Local Rules suggests that the obligation to m eet and confer in any way extends the thirty-day period in which to file a m otion to com pel. In this case, adding three days for service by m ail, Plaintiff had no later than May 9, 20 16 in which to file a m otion to com pel. By that tim e, Plaintiff knew that HHRC was not am enable to providing all of the inform ation requested. The parties had not spoken by telephone, or m et in person, as required; however, the com m unications between the parties m ade clear what inform ation HHRC would agree to provide in its supplem ental responses, and what inform ation HHRC refused to provide. (ECF No. 79-4). Notwithstanding the rem aining disputes, Plaintiff failed to file a motion to com pel until Novem ber, six m onths after expiration of the deadline. During that period, no stipulations were entered extending the thirty-day deadline, and no m otion seeking an extension of the deadline was filed. Accordingly, Plaintiff waived her right to file a m otion to com pel. 3 On occasion, a party’s waiver has been excused; for exam ple, 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 m isunderstanding between the parties, or som e other circum stance that justifies consideration by the Court of a m otion to com pel filed after the deadline. However, those occasions are not com m on, and this case does not present such circum stances. Despite Plaintiff’s representations to the contrary, the record indicates that Plaintiff sim ply failed to follow-up on the discovery responses between April and J uly. When Plaintiff’s counsel received a set of supplem ental responses in J uly, she advised HHRC’s counsel that Plaintiff still wanted additional inform ation in response to request for production of docum ents no. 27. The inform ation was not forthcom ing, yet Plaintiff waited another three m onths and two weeks before filing the m otion to com pel. Then, the m otion to com pel not only requested supplem entation of request for production of docum ents no. 27, but also asked the Court to com pel a supplem ental response to request no. 24, a response that was not raised as an issue in Plaintiff’s J uly correspondence. Clearly, Plaintiff has no good excuse for failing to tim ely file a m otion to com pel. Considering the length of the delay and the current posture of the case, Plaintiff’s m otion is, therefore, denied as untim ely. The Clerk is instructed to provide a copy of this Mem orandum Opinion and Order to counsel of record. EN TERED : Decem ber 14, 20 16 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
