McGowen et al v. Kroger District I

Filing 81

ORDER DENYING PLAINTIFF'S 78 Motion to Compel AND ORDERING THE PLAINTIFFS TO SHOW CAUSE WHY THEY SHOULD NOT PAY DEFENDANT'S ATTORNEY FEES - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RHONDA McGOWAN, ET AL.,
Plaintiffs,

No. 16-13216

v.

District Judge Terrence G. Berg
Magistrate Judge R. Steven Whalen

KROGER DISTRICT I,
Defendant.
/
ORDER
Before the Court is Plaintiffs’ motion to compel discovery [Doc. #78], in which
they seek an order compelling Defendant to respond to their Request for Production of
Documents and Interrogatories.
There are several reasons why this motion should be denied. First, discovery
closed on October 13, 2017, and Defendant filed a motion for summary judgment on
November 14, 2017. Plaintiffs filed the present motion on December 19, 2017, making it
subject to denial as being grossly untimely. See Suntrust Bank v. Blue Water Fiber, L.P.,
210, F.R.D. 196 (E.D. Mich. 2001); AVKO Educational Research Foundation v. Morrow,
2013 WL 1395824 at *11 (E.D. Mich. 2013). Also, Plaintiffs failed to comply with
Fed.R.Civ.P. 37(a)(1) and E.D. Mich. L.R. 7.1, which requires a certification that the
moving party held a conference and/or sought concurrence of the opposing party.
Finally, the motion fails on its merits. As to the document requests, that issue was
resolved by stipulation filed on September 12, 2017 [Doc. #54], which withdrew

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Plaintiffs’ previous motion to compel.1 As to the interrogatories, I have reviewed the
Defendant’s responses, attached to its response as Exhibit 5 [Doc. #80], and, while
Defendant interposed objections to each disputed interrogatory, nonetheless provided
responsive answers subject to those objections.2
For these reasons, Plaintiffs’ motion to compel [Doc. #78] is DENIED.
Pursuant to Fed.R.Civ.P. 37(a)(5)(B), Plaintiffs must show cause in writing, no
later than 14 days from the date of this Order, why they should not pay the Defendant its
reasonable expenses incurred in opposing this motion, including attorney’s fees.
IT IS SO ORDERED.
Dated: January 2, 2018

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s/R. Steven Whalen
R. STEVEN WHALEN
U.S. MAGISTRATE JUDGE

The stipulated order states:

“This matter came before the Court upon agreement of the parties that
Defendant Kroger Co. of Michigan 709 has responded to Plaintiffs’ First
Request for Production of Documents to Defendant, that Plaintiffs’ Motion
to Compel Kroger to Produce Records of Production has therefore been
resolved, and that the Motion should be withdrawn.”
2

Plaintiffs claim that Defendant failed to respond to Interrogatory No. 6. That may
be because there is no Interrogatory No. 6.
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CERTIFICATE OF SERVICE
I hereby certify on January 2, 2018 that I electronically filed the foregoing paper with
the Clerk of the Court sending notification of such filing to all counsel registered
electronically. I hereby certify that a copy of this paper was mailed to non-registered ECF
participants on January 2, 2018.
s/Carolyn M. Ciesla
Case Manager for the
Honorable R. Steven Whalen

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