Betts v. Work Zone Traffic Control, Inc.
ORDER Affirming Magistrate Judge Watanabe's Order Denying Plaintiff's Motion to Compel. Plaintiff's Objection (Doc. # 50 ) is OVERRULED and Magistrate Judge Watanabe's Order (Doc. # 49 ) is AFFIRMED. By Judge Christine M. Arguello on 08/09/2017. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 16-cv-01890-CMA-MJW
WORK ZONE TRAFFIC CONTROL, INC.,
ORDER AFFIRMING MAGISTRATE JUDGE WATANABE’S ORDER DENYING
PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court on Plaintiff David Betts’s Objection (Doc. # 50) to
an Order issued by Magistrate Judge Michael J. Watanabe on June 28, 2017 (Doc. #
49), wherein Magistrate Judge Watanabe denied Plaintiff’s Motion to Compel Defendant
Work Zone Traffic Control Inc. to provide Plaintiff with various GPS records (Doc. # 35).
For the following reasons, this Court overrules Plaintiff’s Objection and affirms
Magistrate Judge Watanabe’s Order.
Magistrate Judge Watanabe’s Order (Doc. # 49) provides an extensive recitation
of the applicable factual and procedural background of this case. The Recommendation
is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b). Additional factual background will be reiterated only to the extent necessary to
address Plaintiff’s Objection.
STANDARD OF REVIEW
When a magistrate judge issues an order on a nondispositive pretrial matter, “[a]
party may serve and file objections to the order within 14 days after being served with a
copy. . . . The district judge in the case must consider timely objections and modify or
set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R.
Civ. P. 72(a). Under the clearly erroneous standard, “the reviewing court [must] affirm
unless it ‘on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th
Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); Allen
v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006).
Plaintiff first objects to Magistrate Judge Watanabe’s conclusion that Plaintiff’s
Motion to Compel was untimely filed. The Court overrules that objection.
Although the Federal Rules of Civil Procedure to not provide a strict deadline for
filing a motion to compel, most courts look to the discovery deadline date in considering
whether a motion to compel is timely. See Craig-Wood v. Time Warner N.Y. Cable
LLC, 549 Fed. Appx. 505 (6th Cir. 2014) (finding district court did not abuse discretion in
denying motion to compel discovery of certain compact discs when employee did not
seek their production prior to discovery deadline and CDs were identified in documents
in employee's possession); Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D.
395, 397–98 (N.D. Tex. 2006) (collecting cases) (untimely when filed two weeks after
discovery deadline, even though filed on day of scheduling order deadline for all
motions); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996)
(“Appellants waited more than one month after the second extended discovery deadline
had elapsed to properly request an order from the district court”); Suntrust Bank v. Blue
Water Fiber, L.P., 210 F.R.D. 196, 200–01 (E.D. Mich. 2002) (filed after the close of
discovery even though the moving party had all the information it needed to file the
discovery motion earlier). Courts also look to the following factors when assessing
timeliness: (1) the length of time since the discovery deadline expired; (2) the length of
time that the moving party has known about the discovery; (3) whether the discovery
deadline has been extended; (4) the explanation for the tardiness or delay in filing the
motion to compel; (5) whether dispositive motions have been scheduled or filed; (6) the
age of the case; (7) any prejudice to the party from whom the discovery is being sought;
and (8) any disruption of the court’s schedule. See Days Inn Worldwide, 237 F.R.D. at
A Scheduling Order issued on September 29, 2016. (Doc. #19.) That Order set
February 21, 2017, as the deadline for discovery requests and March 27, 2017, as the
discovery cut-off date. (Id.) On October 28, 2016, Plaintiff served written discovery on
Defendant, including a request for GPS records. On January 10, 2017, Defendant
responded to the written discovery, objecting to the request for GPS records as
disproportionate to the needs of the case and as otherwise available from a third party.
On March 2, 2017, Plaintiff filed a motion to compel Defendant to produce
timesheets and payroll records. Plaintiff, aware of Defendant’s objection from January
10, 2017, could have requested Defendant also produce GPS records, but Plaintiff did
not. On April 18, 2017, the Court granted Plaintiff’s motion and compelled Defendant to
produce timesheets and payroll for six employees by May 5, 2017. The Court also
extended discovery to May 26, 2017, for the limited purposes of (1) allowing Defendant
to produce the time sheets and payroll records and (2) allowing Plaintiff the opportunity
to depose up to nine individuals. (Doc. # 32.) Defendant produced the time sheets and
payroll records on May 5, 2017. Plaintiff did not conduct depositions. On May 12,
2017, Plaintiff filed the instant Motion to Compel, wherein Plaintiff requested that the
Court order Defendant to produce GPS records.
Considering this timeline, the Court agrees with Magistrate Judge Watanabe that
Plaintiff’s Motion to Compel was untimely filed. Contrary to Plaintiff’s present
contentions, the extension of the discovery deadline — from March 27 to May 26, 2017
— expressly applied narrowly as set forth above. The extension did not open the door
to new discovery requests, including the production of GPS documents from Defendant.
Nor has Plaintiff demonstrated that any of the eight factors set forth above warrant
reversing Magistrate Judge Watanabe’s conclusion. To the contrary, the vast majority
of those factors, particularly factors 1–5, weigh against a finding of timeliness.
Because this Court is not left with “the definite and firm conviction that a mistake
has been committed,” Ocelot Oil Corp., 847 F.2d at 1464, Plaintiff’s objection on
grounds of timeliness is overruled.
B. LEGAL BASIS UNDER RULE 26(B)(1)
Plaintiff also objects to Magistrate Judge Watanabe’s conclusion that Plaintiff
failed to establish a legal basis sufficient to support his Motion to Compel under Rule
26(b)(1). The Court overrules the objection.
Rule 26(b)(1) provides,
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
As a preliminary matter, the Court addresses Defendant’s contention that Plaintiff
failed to address portions of Rule 26 such that his present arguments should be
considered waived. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“In this circuit, theories raised for the first time in objections to the magistrate judge’s
report are deemed waived.”). Although thinly argued and not specifically cited, Plaintiff
did reference one Rule 26 factor in his Motion to Compel — the relevance of the GPS
records to his claims and defenses. (Doc. # 35.) However, Plaintiff did not address any
other Rule 26 factors, including whether the requested information was “proportional to
the needs of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the issues, and whether
the burden or expense of the proposed discovery outweighs its likely benefit”— all of
which Plaintiff now raises in his Objection. The Court accordingly considers those
arguments waived and declines to address them.
Moreover, after considering the preserved arguments set forth in Plaintiff’s
objection, the Court finds no clear error with regard to Magistrate Judge Watanabe’s
conclusion that Plaintiff failed to establish a legal basis for the requested relief. Indeed,
Plaintiff’s only delineated reason for requesting the Court to compel production was,
essentially, that he really needed the information. And, again, this is information that he
could have requested to have compelled much sooner in litigation or attempted to
obtain from a third party using a Rule 45 subpoena — before the discovery deadlines
had expired. See Simpson v. Univ. of Colorado, 220 F.R.D. 354, 356 (D. Colo. 2004)
(“[A] party's right to obtain discovery . . . may be constrained where the court determines
that the desired discovery is unreasonable or unduly burdensome given the needs of
the case . . . or to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.”).
Because this Court is not left with “the definite and firm conviction that a mistake
has been committed,” Plaintiff’s objection on grounds that Magistrate Judge Watanabe
misapplied Rule 26 is overruled.
Accordingly, Plaintiff’s Objection (Doc. # 50) is OVERRULED and Magistrate
Judge Watanabe’s Order (Doc. # 49) is AFFIRMED.
DATED: August 9, 2017
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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