McCoy, et al. v. Over Easy Management, Inc., et al.

Filing 211

ORDER granting 186 Motion to Compel; denying 208 Motion to Compel; denying 208 Motion to Stay Discovery. Signed by Magistrate Judge James P. O'Hara on 1/26/2017. (srj)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICIA A. McCOY, et al.,
Plaintiffs,
v.

Case No. 14-1309-EFM

OVER EASY MANAGEMENT, INC., et al.,
Defendants.
ORDER
Plaintiffs Patricia A. McCoy, Retta A. Feldkamp, and Christina L. Reeves, on
behalf of themselves and all others similarly situated, filed this wage and hour suit
against defendants alleging violations of the Fair Labor Standards Act and Kansas Wage
Payment Act. This case comes before the undersigned U.S. Magistrate Judge, James P.
O’Hara, on the motion of defendants Over Easy Management, Inc., Over Easy LP, Over
Easy Number IX, LP, and Over Easy Number X, LP (collectively, “defendants”) to
compel plaintiffs’ discovery responses (ECF No. 186) and plaintiffs’ cross-motion to
compel mediation and stay discovery pending mediation (ECF No. 208).1

For the

reasons set forth below, defendants’ motion to compel is granted, and plaintiffs’ crossmotion is denied.
Background
On July 18, 2016, defendants served interrogatories and requests for production on

1

Plaintiffs’ response to defendants’ motion to compel and cross-motion to compel
mediation and stay discovery are contained in a single pleading. For docketing purposes,
plaintiffs’ pleading has been assigned two entries, ECF Nos. 198 and 208.
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plaintiffs. Plaintiffs McCoy, Reeves, and Feldkamp served responses on or about August
19, 2016, August 24, 2016, and September 8, 2016, respectively. On October 14, 2016,
after obtaining an extension of time to file a motion to compel plaintiffs’ discovery
responses,2 defense counsel sent a “golden rule” letter to plaintiffs’ counsel. On October
28, 2016, plaintiffs served information resolving one deficiency identified in defense
counsel’s golden-rule letter, and in the accompanying cover letter, indicated that the
remaining information sought would be provided “in the next few weeks.”3 Defense
counsel emailed plaintiffs’ counsel the same day, seeking clarification, as follows:
Our motion to compel is due Monday. Are you saying that you are going to
produce everything that is addressed in our golden rule letter “in the next
few weeks,” without further objection? Thanks.4
In an email sent that same day, plaintiffs’ counsel responded, “Yes.”5
Based on plaintiffs’ assurance they would produce information resolving all
discovery deficiencies identified in defense counsel’s October 14th golden-rule letter,
defendants sought and obtained a second extension of time to file a motion to compel
plaintiffs’ discovery responses.6
On November 14, 2016, plaintiffs McCoy and Reeves served supplemental

2

See ECF No. 157.

3

ECF No. 187 at 3 (quoting ECF No. 187-8).

4

Id. (quoting ECF No. 187-9).

5

Id. (quoting ECF No. 187-9).

6

See ECF No. 159.
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discovery responses.

Based on the supplemental production, and anticipating

supplemental responses from plaintiff Feldkamp, defendants sought and obtained a third
extension of time to file a motion to compel plaintiffs’ discovery responses.7
November 21, 2016, plaintiff Feldkamp served supplemental responses.

On

Asserting

plaintiffs’ supplemental discovery responses failed to cure the remaining deficiencies
identified in defense counsel’s October 14th golden-rule letter, and seeking additional
time to confer, defendants obtained a fourth extension of time to file a motion to compel
plaintiffs’ discovery responses.8 On November 30, 2016, defense counsel sent a followup golden-rule letter to plaintiffs’ counsel.
According to defense counsel, plaintiffs’ and defendants’ counsel agreed, by way
of telephone conference on December 12, 2016, that a motion to compel “might impede
rather than expedite Plaintiffs’ agreed supplementation of discovery.”9

Therefore,

defendants sought and obtained a “last and final” extension of time, until January 3,
2017,10 to file a motion to compel plaintiffs’ discovery responses “to allow Plaintiffs to
focus on supplementing discovery rather than discovery motion practice.”11 Defendants
assert plaintiffs have not provided any supplemental discovery responses or
documentation following counsel’s December 12th telephone conference.
7

See ECF No. 163.

8

See ECF No. 166.

9

ECF No. 187 at 4.

10

See ECF No. 174.

11

ECF No. 187 at 4.
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In the instant motion to compel, defendants seek an order compelling: (1) plaintiff
Feldkamp to provide a complete answer to Interrogatory No. 12 of defendants’ first set of
interrogatories; (2) all plaintiffs to search for electronic communications responsive to
Request Nos. 4, 5, 13, 14, 15, and 16 of defendants’ first request for production and
Interrogatory No. 5 of defendants’ first set of interrogatories, and to provide complete
responses to same; and (3) all plaintiffs to inform defendants of the steps taken to search
for responsive electronic communications and any problems plaintiffs encountered in
doing so. Opposing defendants’ motion to compel, plaintiffs fail to address any of the
specific discovery requests discussed in defendants’ motion.

Instead, plaintiffs assert

only:
[t]he information sought by the Defendants’ [sic] is not likely to lead to any
admissible or relevant evidence. In fact, it would appear that the
Defendants’ [sic] are bent on sending the Plaintiffs’ [sic] on a “paper
chase” solely for the purpose of harassment and retaliation.12
Claiming “[i]t is difficult to respond to the Defendants’ Motion to Compel without
first pointing out that the Defendants’ [sic] have defied the Initial Orders of the Court by
refusing to provide a good faith settlement offer to the Plaintiffs’ [sic] and/or engage in
Mediation,” plaintiffs ask the court to deny defendants’ motion “for lack of good faith,”
or alternatively, to continue the determination of defendants’ motion pending
mediation.13 Plaintiffs also seek to stay discovery pending mediation, as well as a status

12

ECF No. 198 at 1; ECF No. 208 at 1.

13

Id.
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conference to extend various deadlines to accommodate “the belated Mediation effort.”14
Defendants’ Motion to Compel Plaintiffs’ Discovery Responses
As an initial matter, the court observes that plaintiffs’ response to defendants’
motion to compel is untimely. In an order dated January 6, 2017, the court expedited
briefing deadlines with respect to defendants’ motion to compel, with the goal of ruling
the motion before the February 6, 2017 proposed pretrial order deadline.15 Plaintiffs’
response to defendants’ motion, filed three days after the January 13, 2017 deadline set
by the court, fails to address or explain its untimeliness.
Moreover, even evaluating plaintiffs’ response brief, plaintiffs fail to address any
of the specific discovery requests at issue. Plaintiffs’ unsupported assertion that the
motion to compel should be denied or continued “for lack of good faith” is unpersuasive,
especially in light of plaintiffs’ prior representation that the discovery sought would be
produced. The court grants defendants’ motion to compel in its entirety. Plaintiffs are
directed to produce the outstanding discovery on or before February 3, 2017.
Plaintiffs’ Cross-Motion to Compel Mediation, Stay Discovery Pending
Mediation, and for Status Conference
On October 26, 2015, the court entered a scheduling order in this case setting
February 29, 2016 as the deadline for mediation to be completed.16 On May 9, 2016, by

14

ECF No. 198 at 2; ECF No. 208 at 2.

15

ECF No. 188.

16

ECF No. 107.
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way of amended scheduling order, the court extended the mediation deadline to
September 15, 2016.17 On September 16, 2016, the court granted the parties’ joint motion
to extend the mediation deadline to October 27, 2016.18
As defendants observe, plaintiffs’ opposition to defendants’ motion to compel is
the first instance in which plaintiffs have sought court intervention to compel mediation.
Notwithstanding the parties’ failure to seek leave of court in modifying scheduling-order
deadlines, the court declines to compel mediation at this juncture, largely for the reasons
set forth in defendants’ reply brief in support of its motion to compel—i.e., it appears
substantially unlikely that mediation will be productive given the parties’ respective
settlement positions.

Accordingly, plaintiffs’ requests to stay discovery pending

mediation and for status conference are denied.
The parties are advised the court, on this record, would have awarded fees had
they been requested in defendants’ motion.
IT IS THEREFORE ORDERED:
1.

Defendants’ motion to compel (ECF No. 186) is granted. By February 3,

2017: plaintiff Feldkamp shall provide a complete answer to Interrogatory No. 12 of
defendants’ first set of interrogatories; (2) all plaintiffs shall search for electronic
communications responsive to Request Nos. 4, 5, 13, 14, 15, and 16 of defendants’ first
request for production and Interrogatory No. 5 of defendants’ first set of interrogatories,
and provide complete responses to same; and (3) all plaintiffs shall inform defendants of
17

ECF No. 143.

18

ECF No. 155.
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the steps taken to search for responsive electronic communications and any problems
plaintiffs encountered in doing so.
2.

Plaintiffs’ cross-motion to compel mediation and stay discovery pending

mediation (ECF No. 208) is denied.
Dated January 26, 2017, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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