Full House Resorts, Inc. et al v. Boggs & Poole Contracting Group, Inc. et al

Filing 139

ORDER denying 114 Motion to Compel and denying 137 Motion to Compel. Signed by Magistrate Judge Michael T. Parker on July 22, 2015. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
FULL HOUSE RESORTS, INC., ET AL.

PLAINTIFFS

v.

CIVIL ACTION NO. 1:14-cv-223-KS-MTP

BOGGS & POOLE CONTRACTING GROUP, INC., ET AL.

DEFENDANTS

ORDER
THIS MATTER is before the Court on the Motion to Compel [114] filed by Defendant
Boggs & Poole Contracting Group, Inc. (“Boggs”) and the Motion to Compel [137] filed by
Defendant Ronald Lustig.1 Having considered the Motions [114] [137], the Court finds that they
should be denied.
The Motions to Compel arise from disputes regarding written discovery requests and
Plaintiffs’ 30(b)(6) deposition. Regarding the written discovery requests, on March 26, 2015,
Defendant Boggs served its first set of requests for production of documents and first set of
interrogatories. See Notices [58] [59]. On April 3, 2015, Defendant Lustig served his first set of
requests for production of documents and first set of interrogatories. See Notices [64] [65]. On
May 6, 2015, Plaintiffs responded to Defendant Lustig’s discovery requests. See Notices [78]
[79] [80]. On May 28, 2015, Defendant Boggs sent Plaintiffs a letter requesting responses to its
discovery requests. See Letter [114-2]. Later that day, Plaintiffs responded to Defendant
Boggs’s discovery requests. See Notices [89] [90].

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Defendant Lustig originally filed a Joinder in Defendant Boggs’s Motion to Compel
[121] on June 25, 2015. Although Defendant Lustig adopted the arguments in Defendant
Boggs’s Motion, he also submitted additional arguments and requested separate relief. Thus, on
July 21, 2015, at the direction of the Clerk of Court, Defendant Lustig filed his pleading as a
Motion to Compel.
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Disputes arose regarding several of Defendant Boggs’s requests for production of
documents and interrogatories and Plaintiffs’ responses thereto. On June 1, 2015, Defendant
Boggs sent Plaintiffs a good faith letter stating that Plaintiffs’ discovery responses were
insufficient. See Letter [114-3]. On June 12, 2015, Plaintiffs responded to Defendant Boggs’s
letter, but the parties were unable to resolve all of their disputes. See Letter [114-4]. On June 15,
2015, Defendant Boggs sent Plaintiffs a second good faith letter. See Letter [114-5]. During a
telephone conference on June 16, 2015, the parties discussed their discovery disputes. Later that
day, Defendant Boggs sent Plaintiffs a third good faith letter. See Letter [114-6].
Disputes also arose between Defendant Lustig and Plaintiffs regarding certain discovery
requests and responses. On June 17, 2015, Defendant Lustig sent Plaintiffs a good faith letter
stating that Plaintiffs’ discovery responses were insufficient. See Letter [121-3]. On June 23,
2015, Plaintiffs responded to Defendant Lustig’s letter, but the parties were unable to resolve all
of their disputes. See E-mails [137-4].
Turning to Plaintiffs’ 30(b)(6) deposition, on May 12, 2015, Defendant Boggs noticed
Plaintiffs’ 30(b)(6) deposition, and on May 27, 2015, Defendant Boggs deposed Plaintiffs’
30(b)(6) deponent, John Ferruci. See Notice [87]. On June 15, 2015, Defendant Boggs sent
Plaintiffs a letter stating that Ferruci was not adequately prepared to address many of the topics
set forth in the 30(b)(6) notice. See Letter [114-5]. Defendant Boggs requested that the parties
resume the deposition. Id.
On June 23, 2015, Defendant Boggs filed its Motion to Compel [114]. On June 25, 2015,
Defendant Listig filed his Joinder [121] in Boggs’ Motion, which would later be filed as a
Motion to Compel. [137]. Defendants seek an order from the Court compelling Plaintiffs to

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respond to all interrogatories, produce all documents, and designate an appropriate and
competent 30(b)(6) representative for deposition. Defendants also seek an award of reasonable
expenses, including attorney’s fees.
Regarding the 30(b)(6) deposition, Plaintiffs argue that this issue is resolved. Plaintiffs
admit that “Ferrucci . . . failed to adequately testify to some of the areas of inquiry in the notice
of 30(b)(6) deposition.” See Response [127] at 11. Plaintiffs assert that “[s]ome of Mr.
Ferrucci’s testimony that he was not prepared to testify was unexpected.” Id. Plaintiffs also state
that “[i]n response to the issues raised in Boggs’ letter dated June 15, 2015, Full House’s counsel
immediately agreed to discuss a continued deposition with its client, stated to Mike Boggs at the
deposition dated June 19, 2015 and on the phone with [counsel for Boggs] on the same date that
it would be agreeable to an additional deposition, and committed in writing to the scheduling of
the deposition on June 29, 2015 with potential dates.” Id. a 11-12. The Court finds that
Defendants’ request for an order compelling Plaintiffs to designate a 30(b)(6) representative for
deposition should be denied as moot. Plaintiffs admit that Ferrucci’s testimony was inadequate
and have agreed to another deposition. In the event they have not already done so, the parties
should schedule and complete this deposition imediately. As for Defendants’ request for an
award of expenses, the Court finds that such is inappropriate at this time.
Regarding the written discovery, Plaintiffs argue that the Motions to Compel are
untimely. On May 23, 2014, this action was removed to this Court. Pursuant to the Case
Management Order [38] entered on August 20, 2014, the discovery deadline was June 1, 2015.
On March 3, 2015, the Court granted the parties’ joint Motion to Amend the Case Management
Order [50] and extended the discovery deadline to July 1, 2015. See Order [52]. The Court also

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cautioned the parties that “they have received the maximum possible extensions for this trial
calendar and are urged to plan accordingly.” Id. On June 8, 2015, Plaintiffs filed a Motion [102]
seeking to extend the discovery deadline by sixty days. Defendants objected to an extension of
the discovery deadline. See Responses [107] [108]. The Court denied Plaintiffs’ Motion [102].
See Order [118].
Thus, Defendant Boggs filed its Motion to Compel [114] eight days prior to the discovery
deadline, and Defendant Lustig filed his Motion to Compel [121] [137] six days prior to the
discovery deadline. Local Rule 7(b)(2)(B) dictates that “[a] party must file a discovery motion
sufficiently in advance of the discovery deadline to allow response to the motion, ruling by the
court and time to effectuate the court’s order before the discovery deadline.” Defendant Lustig
first received Plaintiffs’ discovery responses on May 6, 2015, but waited more than a month to
send Plaintiff a good faith letter and waited fifty days to file his Motion to Compel. After
waiting more than two months after serving its discovery requests, Defendant Boggs first
received Plaintiffs’ discovery responses on May 28, 2015. Thereafter, Defendant Boggs waited
an additional twenty-six days to file its Motion to Compel.
Defendants had a duty to timely follow-up on discovery requests and timely move to
compel when necessary, especially considering the fact that Defendants served their discovery
requests late in the discovery period. Defendant Boggs argues that it “tried to patiently work
with Plaintiffs to get Plaintiffs to respond . . . including sending three good faith letters. In light
of Boggs’ repeated attempts to work through the discovery deficiencies, as the Rules require,
Plaintiffs should not be allowed to hide behind the Local Rules to evade production.” See
Rebuttal [136] at 10-11. This Court, however, has previously explained,

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Obviously, problems arise and the Court should be reasonable in working with the
attorneys where necessary. However, if the conduct of a respondent to discovery
necessitates a motion to compel, the requester of the discovery must protect himself
by timely proceeding with the motion to compel. If he fails to do so, he acts at his
own peril. He must not expect the Court to extend discovery and/or the trial date
because of the failure of the other party to respond, even if that is in bad faith.
Wells v. Sears Roebuck and Co., 203 F.R.D. 240, 241 (S.D. Miss. 2001).
Defendants’ Motions to Compel were not filed sufficiently in advance of the discovery
deadline as required by Local Rule 7(b)(2)(B), despite the fact that the parties were granted a
discovery period of more than ten months. Additionally, Defendants did not seek expedited
consideration of their Motions to Compel. The discovery deadline has passed, and Defendants
have not established good cause for the Court to address the disputed discovery requests or
responses at this late date. See Grey v. Dallas Independent School Dist., 265 Fed. App’x. 342,
348 (5th Cir. 2008) (finding no abuse of discretion where district court denied a motion to
compel discovery when “it was filed on the day of the discovery deadline after an extensive
discovery period”); Turnage v. General Elec. Co., 953 F.2d 206, 209 (5th Cir. 1992) (affirming
district court’s denial of plaintiff’s request to inspect circuit breaker based on (i) the imminence
of trial, (ii) the impending discovery deadline, and (iii) [plaintiff’s] failure to request an
inspection earlier”).
IT IS, THEREFORE, ORDER that Defendant Boggs’s Motion to Compel [114] is
DENIED and Defendant Lustig’s Motion to Compel [137] is DENIED.
SO ORDERED this the 22nd day of July, 2015.
s/ Michael T. Parker
United States Magistrate Judge

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