McMillan et al v. JPMorgan Chase Bank NA et al

Filing 68

ORDER denying 32 Motion to Compel Answers to Discovery. Parties shall bear their own costs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/2/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DAVID MCMILLAN, INDIVIDUALLY
AND ON BEHALF OF HIS MINOR
CHILDREN, KATELYNN ELIZABETH,
BRIANNA LYNNE, SOPHIA LORENA,
AND QUILLAN DAVID MCMILLAN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-500-SDD-RLB

J.P. MORGAN CHASE
BANK, N.A., ET AL.
ORDER
Before the Court is Plaintiffs’ Motion to Compel Answers to Discovery (R. Doc. 32) filed
on December 5, 2016. The motion is opposed. (R. Doc. 45). Plaintiffs have filed a Reply. (R.
Doc. 52).
The Court set November 28, 2016 as the final deadline to complete all discovery and to
file related motions. (R. Doc. 24). Plaintiffs seek an order requiring Chase to provide
supplemental responses to Plaintiffs’ Interrogatory No. 3 and No. 16 served on October 28, 2016,
and to which Chase responded on November 28, 2016. The instant motion was timely filed
because it was “filed within seven days after the discovery deadline and pertain to conduct
occurring during the final seven days of discovery.” LR 26(g).
As a preliminary issue, Chase argues that the Motion to Compel should be denied
because the underlying interrogatories were untimely served. Rule 33(b)(2) provides that a
“responding party must serve its answers and any objections within 30 days after being served
with the interrogatories.” Fed. R. Civ. P. 33(b)(2). There is no dispute that Plaintiffs served the
interrogatories by e-mail on October 28, 2016. (R. Doc. 32-1 at 1; see R. Doc. 33-2). Pursuant

to the methods of calculating time provided by Rule 6(a), Chase’s responses would be due on
November 28, 2016. See Fed. R. Civ. P. 6(a).1 At the time the interrogatories were served,
however, Rule 6(d) provided that “[w]hen a party may or must act within a specified time after
service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the
period would otherwise expire under Rule 6(a).” Fed. R. Civ. P. 6(d) (prior version).2 Service by
e-mail constitutes service by “electronic means” pursuant to Rule 5(b)(2)(E). See Fed. R. Civ. P.
5(b)(2)(E). Accordingly, Chase was provided an additional 3 days to provide responses to the
interrogatories, making them due on December 1, 2016.3
This Court’s Local Rules provides that “[w]ritten discovery is not timely unless the
response to that discovery would be due before the discovery deadline” and “[t]he responding
party has no obligation to respond and object to written discovery if the response and objection
would not be due until after the discovery deadline.” LR 26(d)(2). This Court has expressly held
that discovery requests served prior to the discovery deadline that require compliance after the
discovery deadline are untimely. See, e.g., Hall v. State of Louisiana, No. 12-657, 2014 WL at
2560715, at *1 (M.D. La. June 6, 2014) (discovery requests served on party 14 days before

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Counting 30 days from the date of service would require a response to be provided on November 27,
2016, a Sunday. See Fed. R. Civ. P. 6(a)(1)(A)-(B). Accordingly, the response date would continue to run until the
end of the next business day, November 28, 2016. See Fed. R. Civ. P. 6(a)(1)(C).
2
As of December 1, 2016, Rule 6(d) provides the following: “When a party may or must act within a
specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or
(F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a)).” Fed. R.
Civ. P. 6(d). The U.S. Supreme Court provided that the amendment “shall take effect on December 1, 2016, and
shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all
proceedings then pending.” Order of the Supreme Court of the United States, Apr. 29, 2016, House Document 114128. Plaintiffs argue that current Rule 6(d) should be applied to the instant discovery dispute because it would be
“just and practicable.” (R. Doc. 52 at 2-3). The current version of Rule 6(d) was not in effect on the date Plaintiffs
served Chase with a copy of the interrogatories by e-mail. Accordingly, the Court must apply former Rule 6(d) to
this discovery dispute.
3
Chase asserts that 33 days should be counted from the date of service, making the deadline to respond on
November 30, 2016. (R. Doc. 45 at 1). The advisory notes indicate that the calculation must first be made by
counting the 30-day period to respond provided by Rule 33(b)(2) pursuant to Rule 6(a), including any additional
time provided by Rule 6(a)(1)(C), and then adding the additional three days pursuant to Rule 6(d). See Fed. R. Civ.
P. 6 advisory committee’s note to 2005 amendment (discussing calculation pursuant to former Rule 6(e)).
2

discovery deadline were untimely as the party had 30 days to respond to such discovery
requests); see also Sandifer v. Hoyt Archery, Inc., No. 12-322, 2015 WL 3465923, at *2 (M.D.
La. June 1, 2015) (“Although it was served 4 days before the expert discovery deadline, the
subpoena was untimely as it required compliance outside of the March 31, 2015 deadline.”);
Dixon v. Greyhound Lines, Inc., No. 13-179, 2014 WL 6474355, at *3 (M.D. La. Nov. 19, 2014)
(“Although it was served 6 days before the expert discovery deadline, the subpoena was
untimely as it required compliance outside of the September 2, 2014 deadline.”).
Courts have denied motions to compel discovery responses where the discovery requests
were untimely served in light of the 3 additional days to respond provided by Rule 6(d). See,
e.g., Nesselrotte v. Allegheny Energy, Inc., No. 06-01390, 2008 WL 1925107, at *2 (W.D. Pa.
Apr. 30, 2008) (denying motion to compel because discovery requests were not timely served
when additional 3 days provided by Rule 6(d) were taken into consideration); Gott v. The
Raymond Corp., No. 07-145, 2008 WL 4911879, at *2 (N.D.W.Va. Nov. 14, 2008) (same); c.f.
Lykins v. CertainTeed Corp., No. 11-2133, 2012 WL 3578911, at *2-3 (D. Kan. Aug. 17, 2012)
(discovery requests were untimely when additional 3 days provided by Rule 6(d) were taken into
consideration, but excusing the untimeliness).
Having reviewed the applicable law and the particular facts of this case, the Court will
deny the motion to compel on the basis that the interrogatories were untimely served. Chase had
no obligation to respond and object to the interrogatories because its responses and objections
were not due until after the discovery deadline. See LR 26(d)(2). That Chase provided certain
responses to the interrogatories on November 28, 2016 does not change this analysis. Because
the interrogatories were untimely served, and Plaintiff did not seek an extension of the deadline
to complete discovery prior to the close of discovery, Chase did not have a duty to respond to the

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interrogatories at all. The Court will not require a party to supplement discovery responses
where the initial responses were not required in the first place. Moreover, the Court finds no
basis to excuse Plaintiffs failure to serve timely the underlying interrogatories. To do so would
undermine the computation rules provided by Rule 6, Local Rule 26(d)(2), and this Court’s
Scheduling Order, as amended.4
Even if the Court reached the merits of the instant motion, it would be denied on the basis
that the interrogatories seek information outside of the scope of discovery as they are overly
broad as written.
Interrogatory No. 3 requests “the name, social security number (if known), last known
address, last known telephone number, and name and address of last known employer, of each
and every person employed for a period of more than one month at the 2828 Monterrey Blvd.
Chase Branch from the time of July 17, 2015 and ten years prior.” (R. Doc. 32-2 at 6). Plaintiffs
represent that Chase objected on the basis that the interrogatory is “overly broad, unduly
burdensome, and unlikely to lead to the discovery of relevant information.” (R. Doc. 32-1 at 2).
Subject to those objections, Chase provided the name of the branch manager and assistant branch
manager at the time of the incident, further indicating that those individuals are no longer
employed by Chase. (R. Doc. 32-1 at 2). Plaintiffs do not raise any convincing argument that the
names and contact information of every employee who worked over one month at the Chase

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The Court’s original Scheduling Order set the deadline to complete discovery on March 31, 2016. (R.
Doc. 6). On February 4, 2016, the Court granted a joint motion to extend the deadlines and reset the discovery
deadline to October 31, 2016. (R. Doc. 9). On September 22, 2016, the Court granted in part an unopposed motion
filed by Chase and extended the discovery deadline to November 28, 2016. (R. Doc. 24). On December 20, 2016,
three weeks after the close of discovery, Plaintiffs filed a motion to extend the discovery deadline to conduct
discovery regarding a third-party. (R. Doc. 43). That motion has been denied by separate order.

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Bank at issue for ten years prior to the incident fall within the scope of discovery. The Court
agrees with Chase that Interrogatory No. 3, as written, is overly broad.5
Interrogatory No. 16 requests Chase to “state whether [Chase has] in the past been sued
for the condition of any property that [Chase owns or rents] in the Baton Rouge area” and, if so,
to provide “the dates that suits were filed and the parties to that suit.” (R. Doc. 32-2 at 9).
Plaintiffs represent that Chase objected on the basis that the interrogatory is “overly broad,
unduly burdensome, and unlikely to lead to the discovery of relevant information.” (R. Doc. 32-1
at 2). Subject to those objections, Chase provided that “[n]o other lawsuits have been filed
concerning the Monterrey Branch, which is the location of this incident.” (R. Doc. 32-1 at 2).
Plaintiffs do not raise any convincing argument that information regarding lawsuits involving all
properties owned or rented by Chase in the Baton Rouge area without any limit in time falls
within the scope of discovery. The Court agrees with Chase that Interrogatory No. 16 is overly
broad.6
Based on the foregoing,
IT IS ORDERED that Plaintiffs’ Motion to Compel Answers to Discovery (R. Doc. 32)
is DENIED. The parties shall bear their own costs.
Signed in Baton Rouge, Louisiana, on February 2, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
After Chase provided its response, Plaintiffs agreed to limit the interrogatory to “those employed at the
location as branch managers or assistant managers during a reduced, seven year-time period.” (R. Doc. 32-1 at 2; see
R. Doc. 32-3 at 2). Chase has not provided any additional responses in line with these limitations. (R. Doc. 32-1 at
3). However, Chase represents that defense counsel has requested this information from Chase, but “is awaiting
approval from in-house counsel for Chase in the human resource department to release the information” and “[a]s
soon as the information is released, it will be provided to plaintiffs.” (R. Doc. 45 at 5).
6
After Chase provided its response, Plaintiffs agreed to limit the interrogatory “to the previous ten years”
and “to all lawsuits concerning a fall outside a Chase bank.” (R. Doc. 32-1 at 3-4; see R. Doc. 32-3 at 2). Chase has
not provided any additional responses in line with these limitations. (R. Doc. 32-1 at 4). At the Rule 30(b)(6)
deposition of Chase’s corporate representative, however, Chase indicated that it was not aware of any other lawsuits
involving an employee of CBRE, Inc. for defects to Chase property. (R. Doc. 45-1 at 4).
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