La Bamba Licensing, LLC v. La Bamba Authentic Mexican Cuisine, Inc.

Filing 25

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 2/2/2017, GRANTING 18 Motion for Extension of Time. Defendant's discovery responses 20 22 23 are deemed TIMELY SERVED. cc: Counsel(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-527-CRS

LA BAMBA LICENSING, LLC,

Plaintiff,

v.
LA BAMBA AUTHENTIC MEXICAN CUISINE, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion for extension of time (DN 18) filed by
Defendant La Bamba Authentic Mexican Cuisine, Inc. (“Defendant”).

Plaintiff La Bamba

Licensing, LLC (“Plaintiff”) filed a response (DN 19). For the reasons set forth below, the
motion for extension is granted.
BACKGROUND
In the motion for extension, filed on January 11, 2017, Defendant requests that the Court
grant it an extension of time until January 13, 2017 to tender its responses 1 to written discovery
requests propounded by Plaintiff. Defendant asserts that Plaintiff’s counsel previously agreed to
an extension of time for defense counsel to complete discovery responses. Defendant states that
“[d]ue to a miscommunication,” its counsel believed that the agreed extended deadline was
January 19, 2017, but that Plaintiff’s counsel has stated that “the remaining discovery must be
filed with the Court by close of business on January 11, 2017.” (DN 18 at 1.) Defendant avers
that its counsel “has relied upon” an associate attorney, Dustin Warren, to prepare and submit the
discovery responses, but that Warren “is unavailable to prepare and submit the discovery

1

At several points in the motion for extension, Defendant refers to preparation of discovery requests,
whereas in the opening and closing paragraphs of the motion, it seeks relief as to the deadline for serving responses
to Plaintiff’s discovery requests. The Court construes the use of the word “requests” as erroneous and addresses the
motion as being related to discovery responses.

[responses] as his wife is eight months pregnant and is currently seeking medical treatment for
pregnancy complications.” (Id. at 1-2.)
Counsel states that due to previously scheduled court appearances, he would be unable to
complete the responses before January 13, 2017. On January 13, 2017, Defendant filed the
following: (i) responses to requests for admission (DN 20); (ii) responses to requests for
production of documents (DN 22); and (iii) answers to interrogatories (DN 23).2
Plaintiff filed its response (DN 19) on January 12, 2017, one day after Defendant filed its
motion for extension and one day before Defendant filed the discovery responses. Plaintiff
argues that the motion for extension should be denied because the deadline for Defendant to
respond to the discovery requests has passed and Defendant has not demonstrated excusable
neglect to justify an extension. Plaintiff further argues that any objections that Defendant
asserted in relation to Plaintiff’s interrogatories should be waived and Plaintiff’s requests for
admission should be deemed admitted. Plaintiff has filed an affidavit of counsel (DN 19-1) that
is consistent with its response. Plaintiff’s counsel avers that he served on Defendant a set of
written discovery requests -- interrogatories, requests for production, and requests for admission
-- on November 16, 2016. (Id. at ¶4.) Counsel asserts that pursuant to the Federal Rules of Civil
Procedure, Defendant was required to serve responses no later than December 19, 2016.
Counsel states that on that December 16, 2016, defense counsel contacted Plaintiff’s counsel to
request a twenty-day extension of the deadline for service of initial disclosures, which at that
time was December 17, 2016. (Id. at ¶¶5-6.) Counsel states that he agreed to the extension as to

2

The Court notes that on January 31, 2017, Plaintiff filed a motion to compel (DN 24), arguing that the
responses served by Defendant are deficient in a number of respects. The Court will resolve the motion to compel
by separate order.

initial disclosures, creating a new deadline of January 6, 2017.3 (Id. at ¶7.) Finally, counsel
states that defense counsel never requested an extension of the deadline for responding to the
discovery requests, and therefore, the December 19, 2016 deadline remained in effect. (Id. at
¶8.)
DISCUSSION
A party responding to interrogatories “must serve its answers and any objections within
30 days after being served with the interrogatories.” Fed. R. Civ. P. 33(b)(2). Similarly, a party
responding to a request for production must respond in writing within thirty days. Fed. R. Civ.
P. 34(b)(2)(A). Likewise, a party responding to a request for admission must respond within
thirty days. Fed. R. Civ. P. 36(a)(3).
For interrogatories, “[a]ny ground not stated in a timely objection is waived unless the
court, for good cause, excuses the failure.”

Fed. R. Civ. P. 33(b)(4).

An answer to an

interrogatory “must, to the extent it is not objected to, be answered separately and fully in writing
under oath.” Fed. R. Civ. P. 33(b)(3). For requests for production, failure to timely object
results in a waiver of the objection. See Duracore Pty. Ltd. v. Applied Concrete Tech., Inc., 2015
WL 4750936 *6 (W.D. Ky. Aug. 11, 2015). For requests for admission, “A matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and signed by the party or
its attorney.” Fed. R. Civ. P. 36(a)(3).
Additionally, Plaintiff contends that the “excusable neglect” standard should apply in this
instance due to Defendant’s failure to request an extension until after the deadline had passed for
it to serve discovery responses. The record does not contain a copy of the discovery requests as
served on Defendant, and the motion for extension does not indicate the original date by which it
3

Defendant filed its initial disclosures on January 6, 2017 (DN 17).

believes it was required to respond to the discovery requests. Plaintiff asserts that that date was
December 19, 2016. Defendant did not file a reply or otherwise dispute that deadline. The Court
finds, therefore, that Plaintiff served its discovery responses on November 16, 2016, and that
absent an extension of time, Defendant’s responses were required to be served no later than
December 19, 2016. Rule 6(b) of the Federal Rules of Civil Procedure provides as follows:
“When an act may or must be done within a specified time, the court may, for good cause,
extend the time . . . on motion made after the time has expired if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). It is within the Court’s discretion to determine
whether a party failed to act because of excusable neglect. See Nafziger v. McDermott Int’l, Inc.,
467 F.3d 514, 522 (6th Cir. 2006) (“We review a district court’s determination of excusable
neglect, or lack thereof, under the abuse-of-discretion standard.”) (citation omitted).
The Sixth Circuit has set forth five factors to be balanced by the district court in making a
determination as to excusable neglect pursuant to Rule 6(b)(1)(B). The five factors are as
follows: “(i) the danger of prejudice to the nonmoving party; (ii) the length of the delay and its
potential impact on judicial proceedings; (iii) the reason for the delay; (iv) whether the delay was
within the reasonable control of the moving party; and (v) whether the late-filing party acted in
good faith.” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
395 (1993)). In applying the five-factor balancing test, the district court is required to “tak[e]
account of all relevant circumstances surrounding the party’s omission.” Id. at 523 (quoting
Pioneer, 507 U.S. at 395).
The Court will now apply the five-factor balancing test set forth by the Sixth Circuit.
First, the Court concludes that there is little, if any, danger of prejudice to Plaintiff if the Court
grants Defendant’s motion for extension. Critically, Defendant filed its responses to all of

Plaintiff’s written discovery requests on January 13, 2017, the date of its proposed extended
deadline, and just two days after filing the motion for extension, and one day after Plaintiff filed
its response. While the January 13, 2017 filing date was nearly one month after the original
deadline for Defendant to respond to the discovery requests, it is clear that Defendant moved
swiftly to correct the delay after becoming aware of its error. Moreover, while Plaintiff’s
response and supporting affidavit contain detailed accounts of the dates relevant to this dispute,
they are devoid of information showing that Plaintiff would be prejudiced by the specific
extension requested by Defendant. Accordingly, the first excusable neglect factor weighs in
favor of granting the motion for extension.
Second, if the Court is to grant the motion for extension, the length of delay to
completing discovery is virtually nonexistent. Pursuant to the operative scheduling order, the
deadline for completion of non-expert discovery and discovery related to liability issues shall be
completed no later than June 17, 2017, and expert discovery and discovery related to damages
shall be completed no later than January 17, 2018. (DN 16 at 2.) It strains credulity to think that
the less than one-month delay in serving discovery responses in December 2016 and January
2017 would have a significant impact, if any, on the judicial proceedings. In any event, Plaintiff
is free to seek an amendment to the scheduling order if it believes an amendment is necessary at
a later date. Accordingly, the second excusable neglect factor weighs in favor of granting the
motion for extension.
The third factor, the reason for the delay, and the fourth factor, whether the delay was in
the reasonable control of the moving parties, are intertwined in this case. Defendant offered two
reasons to support its request for an extension: (i) a misunderstanding regarding the extension
that Plaintiff previously agreed to; and (ii) Warren, the associate attorney, having been

unavailable to prepare the discovery responses due to his wife’s pregnancy complications. The
Court credits defense counsel’s representations on these two issues and finds that while the
circumstances surrounding the delay were related to Defendant’s attorneys’ efforts, there is no
evidence of malicious conduct on their part. Defendant finds itself in the position of requesting
an extension due to a mistake in recording a deadline, a misunderstanding of opposing counsel’s
agreement as to an extension of time, and a personal medical situation. This is hardly indicative
of untoward action. Accordingly, the Court finds that the third and fourth factors weigh in favor
of granting the motion for extension.
The fifth and final inquiry is whether the moving party acted in good faith. The Court
credits Defendant’s account of the events leading to the filing of the motion for extension. The
Court concludes that, while Defendant could have acted with greater diligence in seeking to
clarify the deadline applicable to its discovery responses, there is no evidence of bad faith under
the circumstances. Accordingly, the Court finds that the final factor weighs in favor of granting
the motion for extension.
Finally, having found that the delay in requesting an extension of time until after the
deadline for serving discovery responses had passed amounted to excusable neglect, the Court
declines Plaintiff’s request to deem Defendant’s objections to the discovery requests to be
waived or to deem the requests for admission to be admitted.

Accordingly, IT IS HEREBY ORDERED as follows:
(1)

Defendant’s motion for extension of time (DN 18) is GRANTED. Defendant’s

discovery responses (DN 20, 22, 23) are deemed TIMELY SERVED.

(2)

The Court will decide Plaintiff’s motion to compel (DN 24) by separate order.

The response and reply, if any, shall be filed in compliance with the Local Rules. Prior to filing
any other discovery-related motion, the parties shall (i) comply with LR 37.1’s requirement that
counsel confer or attempt to confer in an effort to resolve their dispute; AND (ii) request and
participate in a telephonic conference with the Magistrate Judge in order to discuss the discovery
dispute. Counsel may request such a conference by contacting Case Manager Theresa Burch at
[e-mail] or [phone].
February 2, 2017

cc: Counsel of record

Colin Lindsay, MagistrateJudge
United States District Court