Burgos-Martinez v. City of Worcester et al

Filing 40

District Judge Timothy S. Hillman: MEMORANDUM AND ORDER entered denying 33 Motion to Compel. (Castles, Martin)

Case 4:16-cv-40128-TSH Document 40 Filed 12/14/18 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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JOSE BURGOS-MARTINEZ,
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CIVIL ACTION
Plaintiff,
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NO. 16-40128-TSH
v.
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THE CITY OF WORCESTER, a Municipal )
Corporation, WORCESTER CITY,
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WORCESTER CHIEF OF POLICE GARY )
J. GEMME, WORCESTER POLICE
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DETECTIVES SGT. STEVE ROCHE,
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MICHAEL A. TARCKINI, WILLIAM
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ESCOBAR, GARY MORRIS, TERRENCE )
GAFFNEY, NEFTALI BATISTA,
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THOMAS J. DUFFY, IGNACIO J.
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GARCIA, CHRISTOPHER A.
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PANARELLO and JOHN DOW,
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Defendants.
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______________________________________
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO COMPEL
DEFENDANTS TO RESPOND TO WRITTEN DISCOVERY (Docket No. 33)
December 14, 2018
HILLMAN, D.J.
Jose Burgos-Martinez (“Plaintiff”) has filed claims for excessive use of force against the
City of Worcester, Gary Gemme, Steve Roche, Michael Tarckini, William Escobar, Gary Morris,
Terrence Gaffney, Neftali Batista, Thomas Duffy, Ignacio Garcia, and Christopher Panarello
(“Defendants”). He has filed this motion to compel Defendants to respond to written discovery.
For the reasons below, Plaintiff’s motion (Docket No. 33) is denied.
Background

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On July 10, 2013, Defendants executed a search warrant at Plaintiff’s home. Plaintiff
arrived at his home while the search was in progress and alleges that Defendants subsequently
used excessive force while restraining him.
Due to underlying criminal proceedings related to Plaintiff’s arrest, this Court twice
granted a stay of discovery. (Docket Nos. 20 & 24). On January 19, 2018, this Court lifted the
stay and, on February 23, 2018, Defendants filed an amended scheduling order which, among other
things, set forth a written discovery deadline of July 6, 2018. (Docket No. 26). On June 29, 2018,
Plaintiff endorsed Defendant’s timeline. (Docket No. 27). Subsequently, this Court adopted the
parties’ proposal and ordered that fact discovery be completed by October 12, 2018. Id.
On October 5, 2018, Plaintiff served written discovery upon Defendants. Defendants
objected that Plaintiff’s written discovery request failed to observe the July 6, 2018 deadline. On
November 2, 2018, Plaintiff filed this motion to compel Defendants to respond. (Docket No. 33).
Legal Standard
“A district court’s case-management powers apply with particular force to the regulation
of discovery and the reconciliation of discovery disputes.” Faigin v. Kelly, 184 F.3d 67, 84 (1st
Cir. 1999). Several courts have used this management power to deny untimely motions to compel.
See, e.g., Amoah v. McKinney, 2016 WL 3906580, at * 1 (D. Mass. July 14, 2016) (“[T]he motion
[to compel] is denied as untimely.”); Bernio-Ramos v. Flores-Garcia, 2015 WL 9169678, at *1
(D.P.R. Dec. 11, 2015) (“Discovery should have been completed by October 30, 2015. Plaintiff
did not seek an extension of that deadline before it elapsed. . . . Instead, she has asked for an order
to compel, more than one (1) month after the discovery deadline expired. That is not enough.”);
Flynn v. Health Advocate, 2005 WL 288989, *7 (E.D. Penn. Feb. 8, 2005) (denying motion to
compel filed past the discovery deadline); see also Modern Continental/Obayashi v. Occupational

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Safety & Health Review Com’n, 196 F.3d 274, 281 (1st Cir. 1999) (upholding a district court’s
decision to deny a motion to compel filed after fact discovery deadline); Richardson v. City of New
York, 326 Fed.Appx. 580, 582 (2d Cir. 2009) (same).
Discussion
To justify the untimely motion, Plaintiff’s counsel essentially argues that he was
preoccupied with other matters. See Docket No. 33 at 3 n.2 (“From June 28, 2018, and continuing
through August, both of plaintiff’s counsel were preoccupied as local counsel in an emergency
class action before this Court . . . and were temporarily impeded in representation of the plaintiff.”).
Courts, however, have consistently found this justification inadequate in similar contexts.
For instance, in de la Torre v. Cont’l Ins. Co. the First Circuit held that attempting to prove
excusable neglect by arguing that counsel was preoccupied with other matters “has been tried
before, and regularly found wanting.” 15 F.3d 12, 15 (1st Cir. 1994). The court noted: “‘[m]ost
attorneys are busy most of the time and they must organize their work so as to be able to meet the
time requirements of matters they are handling or suffer the consequences.’” Id. (quoting Pinero
Schroeder v. FNMA, 574 F.2d 1117, 1118 (1st Cir. 1978)); see also Deo-Agbasi v. Parthenon
Group, 229 F.R.D. 348, 352 (D. Mass. 2005) (“Thus, the reason for the delay, the foremost factor
in determining excusable neglect, weighs heavily against Deo-Agbasi because Porter’s workload
and carelessness are not adequate to excuse the neglect in this case.”).
The same is true here. That Plaintiff’s counsel was busy is not a satisfactory justification
for the untimely motion. Despite their workload, “litigants have an unflagging duty to comply
with clearly communicated case-management orders.” Rosario-Diaz v. Gonzalez, 140 F.3d 312,
315 (1st Cir. 1998). Because Plaintiff’s counsel failed to comply with that duty, he and his client
must now live with the consequences.

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Conclusion
For the reasons stated above, Plaintiff’s motion to compel (Docket No. 33) is denied.
SO ORDERED.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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