West Baton Rouge School Board v. Deshotel et al

Filing 31

ORDER granting 29 MOTION for Leave to File a Sur-Reply; 26 Motion to Compel; 26 Motion to Extend Discovery Deadlines. Amended Pleadings due by 12/28/2011. Filing all discovery motions and completing all discovery due by 6/30/2012. Expert Reports due by 8/28/2012 for plaintiff and 9/30/2012 for defendant. Discovery from Experts due by 12/28/2012. Dispositive Motions shall be filed by 12/29/2012.. Signed by Magistrate Judge Docia L Dalby on 12/16/2011. (LSM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WEST BATON ROUGE SCHOOL BOARD

CIVIL ACTION

VERSUS

NUMBER: 11-53-BAJ-DLD

WILLIAM JUDE DESHOTEL AND ANGELA
GAIDRY DESHOTEL, ON BEHALF OF THEIR
MINOR CHILD, T.D.

ORDER
This matter is before the court on a referral from the district court of defendants'
motion to compel responses and ex-parte motion to extend discovery deadlines, and
counter-defendant the State's motion for leave to file a sur-reply. (rec. docs. 26 & 29).
Defendants assert that the State1 failed to provide initial disclosures by the August 29,
2011, scheduling deadline, and further failed to respond to written discovery within the
requisite time delay (September 16, 2011). Defendants also contend that on September
26, 2011, a discovery conference was held, wherein the State agreed to provide the
disclosures and responses within two weeks. When the disclosures and responses were
not forthcoming, defendants filed the instant motion to compel responses on October 24,
2011. As a part of defendants' motion to compel, defendants requested a 60-day extension
in the scheduling deadlines commensurate with the State's delay in providing discovery
responses. Defendants also sought the State's agreement as to an extension in the
deadlines pursuant to LR 7.3.1, but the State did not respond. (rec.doc. 26, pg. 3)

1

The "State" is identified as including the State of Louisiana, Paul Pastorek, the Louisiana Department
of Education, and Board of Elementary and Secondary Education. (rec.doc. 26, pg. 1)

In its opposition, the State asserts that it provided responses on November 9, 2011,
and November 15, 2011, and requests that the motion to compel be dismissed as moot.
(rec.doc. 27). The State did not file an opposition to the ex-parte motion for extension of
the scheduling deadlines. (rec.doc. 27)
GOVERNING LAW AND ANALYSIS
Federal Rule of Civil Procedure 37(a)(5)(A) states that if the initial disclosures or
requested discovery is provided after the motion was filed,
[T]he court must, after giving an opportunity to be heard, require the party
or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees. But the court must
not order this payment if: (i) the movant filed the motion before attempting
in good faith to obtain the disclosure or discovery without court action; (ii) the
opposing party's nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of expenses unjust.
In this case, it is undisputed that the State provided its disclosures and responses
after defendants filed the instant motion to compel. Also, while the State was afforded an
opportunity to be heard via its opposition to the motion to compel, the opposition does not
provide the court with any explanation that the State's nondisclosure and failure to respond
to discovery for such an extended period was substantially justified, or that there were other
circumstances that would make an award of expenses unjust.2 Further, defendants clearly
made a good faith attempt to obtain the discovery without court intervention; thus,
defendants have demonstrated to the court's satisfaction that Rule 37(a)(5)(A) sanctions
are appropriate. While defendants have not specified an amount for the sanctions, the
court has reviewed the motion to compel and finds that $500.00 is an appropriate sanction
2

The court notes that the State now has filed a motion for leave to file a "sur-reply," and the court will
grant the motion for leave to file the "sur-reply"; however, the "sur-reply" also does not provide any explanation
for the lateness of the responses.

-2-

as initial disclosures and discovery responses were provided more than 60 days late and
without explanation, despite the State's having been given additional time to provide the
disclosures and responses.
Further, as defendants also now require an extension of the scheduling deadlines
to compensate for the dilatory disclosures and responses provided by the State, and the
State did not address its failure to respond to the request for an extension of the scheduling
deadlines, the court therefore will grant the extension and will extend all deadlines by sixty
(60) days.
Accordingly,
IT IS ORDERED that defendant's motion to compel responses is GRANTED as
follows:
1.

The motion to compel responses is GRANTED to the extent that the State
and/or its counsel is ordered to pay sanctions in the amount of $500.00 to
defendants within fourteen (14) days of this Order, pursuant to F.R.C.P. 37(a)
(5)(A); and

2.

The ex-parte motion for an extension of the scheduling deadlines is
GRANTED as follows:
A.

The deadline for amending the complaint or adding new parties,
claims, counterclaims, or cross-claims is December 28, 2011.

B.

Filing all discovery motions and completing all discovery except
experts: June 30, 2012.

NOTE: Any motions filed regarding written discovery must be accompanied
by a certificate of counsel for the moving party, stating that counsel have
conferred in person or by telephone for purposes of amicably resolving the
issues and stating why they are unable to agree or stating that opposing
counsel has refused to so confer after reasonable notice.

-3-

C.

Disclosure of identities and resumés of experts: July 28, 2012.
Expert reports must be submitted to opposing parties:
Plaintiff(s):

August 28, 2012.

Defendant(s):

September 30, 2012.

D.

Discovery from experts must be completed by November 28, 2012.

E.

All dispositive motions must be filed on or before December 29, 2012.

The time limits set forth in this order shall not be modified except by leave of court
upon a showing of good cause. In the event the parties have not previously notified the
court that the matter is ready to be set for a pretrial conference, or the district judge has not
already set a pretrial conference, this matter will be reviewed within 15 days of the
expiration of the deadline to file dispositive motions (December 29, 2012), and assigned
for a pre-trial/status conference if necessary. The parties may contact the court at (225)
389-3602 after discovery has been completed should they wish to schedule a settlement
conference.
IT IS FURTHER ORDERED that the State's motion for leave to file a sur-reply is
GRANTED (rec. doc. 29).
Signed in Baton Rouge, Louisiana, on December 16, 2011.

MAGISTRATE JUDGE DOCIA L. DALBY

-4-