JERICHO BAPTIST CHURCH MINISTRIES, INC. v. JERICHO BAPTIST CHURCH MINISTRIES, INC. et al

Filing 56

MEMORANDUM OPINION AND ORDER denying Plaintiff's 46 Motion to Reopen and Enlarge Discovery and Plaintiff's 50 Motion to Compel Erika Cole's Production of Documents, and granting in part and denying in part Defendant's 54 Motion to Strike Plaintiff's Reply Brief. Please see the attached Memorandum Opinion and Order for additional details. Signed by Judge Amit P. Mehta on 08/02/2018. (lcapm1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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JERICHO BAPTIST CHURCH
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MINISTRIES, INC. (MARYLAND), et al.,
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Defendants.
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JERICHO BAPTIST CHURCH
MINISTRIES, INC. (DISTRICT OF
COLUMBIA),

Case No. 1:16-cv-00647 (APM)

MEMORANDUM OPINION AND ORDER
Before the court are two discovery-related motions filed by Plaintiff Jericho Baptist Church
Ministries, Inc. (D.C.). The first asks the court to “reopen and enlarge” the time for discovery
(“Motion to Enlarge Time”). See Pl.’s Mot. to Reopen & Enlarge Disc., ECF No. 46 [hereinafter
Pl.’s Mot. to Enlarge]. The second seeks to compel production of records from a lawyer, Erika
Cole (“Motion to Compel”). See Pl.’s Mot. to Compel Erika Cole’s Production of Docs., ECF No.
50 [hereinafter Mot. to Compel]. Both Motions are denied.
1.

Motion to Enlarge Time. The court set May 30, 2018, as the deadline for all fact

discovery other than “discovery related to bank/financial transactions,” and June 15, 2018, as the
deadline for all fact “[d]iscovery related to bank/financial transactions.” See Order, ECF No. 45
[hereinafter Revised Scheduling Order], ¶ I.B–C. Plaintiff’s Motion to Enlarge Time is premised
on the production of 1,000 pages of emails from Defendants Magruder and Killen on May 18,
2018. See Pl.’s Mot. to Enlarge at 8; see also id. at 7 (asserting that “Defendants’ recent production

of documents has opened an evidentiary Pandora’s Box”). 1 As this discovery does not relate to
“bank/financial transactions,” the deadline to file any motion to extend time was May 30, 2018.
Plaintiff did not, however, file the Motion to Enlarge Time until June 8, 2018. See Pl.’s Mot. to
Enlarge. It is therefore untimely. See Revised Scheduling Order ¶ II (“A request for an extension
of time made after the discovery deadline will be considered untimely.”). With Plaintiff having
missed the deadline to extend the relevant discovery deadline, it must establish “excusable neglect”
for its failure to move in a timely manner. See Fed. R. Civ. P. 6(b)(1)(B). This it has failed to do.
Indeed, Plaintiff offers no reason for its late filing, let alone excusable neglect for doing so. For
that reason alone, Plaintiff’s Motion to Enlarge Time is denied.
Even if the court were to treat Plaintiff’s request for additional time to conduct discovery
as timely filed, Plaintiff has not established “good cause” to modify the scheduling order. See Fed.
R. Civ. P. 16(b)(4); LCvR 16.4(a). “In deciding whether good cause exists under Rules 16(b) and
16.4 to amend a scheduling order, the Court primarily considers the diligence of the party in
seeking discovery before the deadline.” Barnes v. District of Columbia, 289 F.R.D. 1, 7 (D.D.C.
2012). Here, Plaintiff fails that test. Discovery in this matter commenced on February 8, 2017,
and the court extended the original discovery deadline of August 7, 2017, multiple times by nearly
a year. See Order, ECF No. 29; Minute Entry, Aug. 10, 2017; Order, ECF No. 35; Order, ECF
No. 44. This court has closely monitored the parties’ discovery efforts since the hearing held on
December 18, 2017, holding an in-chambers discovery conference in January 2018 and multiple

1

In its reply brief, Plaintiff asserts additional reasons for extending the discovery deadline. See generally Pl.’s Reply
to Defs.’ Opp’n to Pl.’s Mot. to Reopen & Enlarge Disc., ECF No. 53, at 3–5. As Plaintiff raised these reasons for
the first time in its reply brief, the court does not consider them. See Nytes v. Trustify, Inc., 297 F. Supp. 3d 191, 202
(D.D.C. 2018) (“Judges in this District have repeatedly held that arguments may not be raised for the first time in a
party’s reply.”); Aleutian Pribilof Islands Ass’n v. Kempthorne, 537 F. Supp. 2d 1, 12 n.5 (D.D.C. 2008) (“[I]t is a
well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief.”
(citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)). Accordingly, the court grants Defendant’s
Motion to Strike Plaintiff’s Reply Brief, ECF No. 54, but only to the extent Defendant asks the court to strike the
arguments raised by Plaintiff for the first time in its Reply.

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interim telephonic conferences since then. The court therefore is intimately familiar with the
degree of diligence exercised by Plaintiff. It has not been sufficient. Plaintiff does not dispute
that, as of December 15, 2017, it had received and had reviewed screenshots of 5,000 emails from
Defendant Killen. See Status Report, ECF No. 42. Plaintiff also received screenshots of Defendant
Magruder’s emails on March 9, 2018. See Defs.’ Opp’n to Pl.’s Mot. to Reopen & Enlarge Disc.,
ECF No. 49, Ex. S, ECF No. 49-1. Plaintiff did not, however, raise any questions about the
sufficiency of screenshot email production until the telephone conference held on April 19, 2018—
over four months after receiving and reviewing Killen’s emails and more than a month after
receiving Magruder’s emails. On the April 19th call, the court left it to the parties to resolve any
disputes about email production, but reminded Plaintiff that the court had set a hard deadline of
May 30, 2018, for non-banking/financial fact discovery. Yet, Plaintiff’s first actual motion for
relief on the issue of email production did not come until after the deadline, when it filed the
Motion to Enlarge Time on June 8, 2018. As the foregoing timeline shows, Plaintiff has had ample
opportunity to challenge the adequacy of Defendant Killen’s and Defendant Magruder’s email
productions, but did not do so. The court will not reward Plaintiff’s lack of diligence by extending
the discovery deadline.
2.

Motion to Compel. Plaintiff’s Motion to Compel is denied for a simple reason—it

is not directed at the right person. According to Plaintiff, it served a Rule 45 subpoena on Erika
Cole, a lawyer, seeking records relating to her representation of Defendant Jericho Baptist Church
Ministries, Inc. (MD). 2 See Pl.’s Mot. to Compel at 1, 7. Apparently, Ms. Cole has asserted the
attorney-client privilege as to her communications with Defendant. See id. Rule 45(d)(2)(B)(i)
provides that, “[a]t any time, on notice to the commanded person, the serving party may move the

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Ms. Cole, however, disputes proper service. See Def.’s Opp’n to Pl.’s Mot. to Compel, ECF No. 52, at 3 n.3.

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court for the district where compliance is required for an order compelling production or
inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i) (emphasis added). Here, in an effort to enforce its
subpoena to Ms. Cole, Plaintiff has not given notice to the “commanded person,” i.e., Ms. Cole.
Rather, it moves for “an order compelling Defendant Jericho Baptist Church Ministries, Inc.
(Maryland) . . . to produce documents withheld on the grounds of attorney-client privilege.” Pl.’s
Mot. to Compel at 1 (emphasis added). As Defendant is not the proper “commanded person,”
Plaintiff’s Motion to Compel is denied without prejudice.

Dated: August 2, 2018

Amit P. Mehta
United States District Judge

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