Tingle v. Hebert

Filing 100

ORDER denying 97 Motion to Compel Discovery and for Attorney's Fees is DENIED as untimely, and Defendants request for reasonable expenses and attorneys fees under Fed. R. Civ. P. 37(a)(5)(A) is also DENIED. Signed by Magistrate Judge Erin Wilder-Doomes on 6/12/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRETTE TINGLE

CIVIL ACTION

VERSUS

NO. 15-626-JWD-EWD

TROY HEBERT, IN HIS INDIVIDUAL
CAPACITY AND IN HIS OFFICIAL
CAPACITY AS THE COMMISSIONER
OF THE OFFICE OF ALCOHOL AND
TOBACCO CONTROL OF THE LOUISIANA
DEPARTMENT OF REVENUE, ET AL.

ORDER
Before the Court is a Motion to Compel Discovery and for Attorney’s Fees (the “Motion”),
filed by Troy Hebert and the Louisiana Office of Alcohol and Tobacco Control (collectively,
“Defendants”).1 Defendants seek to compel Plaintiff to respond to Defendants’ Second Set of
Interrogatories and Requests for Production of Documents Propounded Upon Plaintiff2 and seek
an award of the reasonable expenses and attorney’s fees incurred in filing the Motion. Plaintiff
has not yet filed a response to the Motion. For the reasons that follow, the Motion is DENIED as
untimely-filed.3 Defendants’ request for reasonable expenses and attorney’s fees under Fed. R.
Civ. P. 37(a)(5)(A) is DENIED.

1

R. Doc. 97.
R. Doc. 97-3.
3
A motion to compel is a nondispositive, pretrial discovery motion.” State Farm Mut. Auto. Ins. Co. v. Friedman,
2002 WL 649417, at *1 (N.D. Tex. Jan. 14, 2002) (citing Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995)). See,
Turner v. Hayden, 2016 WL 6993864, at *1 (W.D. La. Nov. 29, 2016) (“The decision by Magistrate Hornsby to deny
Turner’s Motion to Compel Discovery is a non-dispositive matter.”); In re Tex. Bumper Exchange, Inc., 333 B.R. 135,
138 (Bankr. W.D. Tex. 2005) (holding bankruptcy court’s order granting motion to compel discovery was an
interlocutory order as the order concerned a nondispositive discovery issue and did not dispose of the merits of
litigation).
2

In the Motion, Defendants assert that they propounded their second set of discovery
requests upon the Plaintiff on April 26, 2017 and that Plaintiff failed to timely respond to discovery
by May 26, 2017. As a result, counsel for Defendants contacted Plaintiff’s counsel on May 30,
2017, and eventually conducted a discovery conference pursuant to Fed. R. Civ. P. 37(a)(1) on
June 2, 2017.4 Although counsel subsequently exchanged additional communications in an
attempt to resolve the discovery dispute, they were unable to do so, which resulted in Defendants
filing the instant Motion on June 7, 2017. In the Motion, Defendants acknowledge that the
discovery deadline was May 26, 2017.5 However, Defendants assert that the Court should consider
the Motion because the Court has granted a limited extension of the discovery deadline to August
25, 20176 and the Court is still considering other discovery issues, including Defendants’ prior
motion to compel.7 Defendants further assert that the Court’s local rules allow parties to file a
motion to compel after the discovery deadline (LR 26(d)(1)) and that there is no bright-line rule
prohibiting a party from filing a motion to compel after the discovery deadline.
Despite Defendants’ assertions to the contrary, the Court finds that the Motion must be
denied as untimely-filed. As Defendants readily admit, the deadline to complete all fact discovery
and to file motions to compel fact discovery was May 26, 2017.8 During a telephone conference
held on May 23, 2017, the Court granted in part the Defendants’ oral motion to extend the
discovery deadline to August 25, 2017, giving the parties additional time to take the continuation
of Plaintiff’s deposition and conduct additional reasonable discovery that arises out of the
deposition, but expressly denying Defendants’ request to extend the discovery deadline for any

4

R. Doc. 97-2 at 2-3.
R. Doc. 97-2 at 2.
6
See, R. Doc. 94.
7
See, R. Doc. 59.
8
R. Doc. 63 at 1.
5

2

other purpose.9 Further, while Local Rule 26(d)(1) does allow the filing of discovery motions after
the expiration of the discovery deadline, the rule specifically provides that such motions must be
“filed within seven days after the discovery deadline.” LR 26(d)(1). Here, the Motion was not
filed within seven days after the May 26, 2017 discovery deadline, as the Motion was filed on June
7, 2017. Thus, the Motion was untimely-filed even under Local Rule 26(d)(1). While Defendants
assert as a basis for the failure to file the Motion timely Plaintiff’s counsel’s delay in participating
in a Fed. R. Civ. P. 37 discovery conference, that is not a basis for failing to seek relief timely.
Defendants could have requested an extension of the deadline to file the Motion to Compel or
requested a conference with the Court, or timely-filed the Motion with a certificate that a
conference was attempted but could not be held. Based on the facts alleged in the Motion, the
Defendants have not shown excusable neglect for their failure to timely file the Motion under Fed.
R. Civ. P. 6(b)(1)(B).
Accordingly,
IT IS ORDERED that Defendants’ Motion to Compel Discovery and for Attorney’s
Fees10 is DENIED as untimely.
IT IS FURTHER ORDERED that Defendants’ request for reasonable expenses and
attorney’s fees under Fed. R. Civ. P. 37(a)(5)(A) is DENIED.
Signed in Baton Rouge, Louisiana, on June 12, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

9

R. Doc. 94.
R. Doc. 97.

10

3