Jackson v. Bank of America, N.A. et al
Filing
101
ORDER denying Plaintiff's Untimely Discovery Motions 54 58 60 62 64 66 . Signed by Magistrate Judge John C. Gargiulo on 9/24/2014 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ERIC L. JACKSON
v.
PLAINTIFF
Civil Action No. 3:13-cv-581-LG-JCG
BANK OF AMERICA, N.A. et al.
DEFENDANTS
ORDER DENYING PLAINTIFF’S UNTIMELY
DISCOVERY MOTIONS [54, 58, 60, 62, 64, 66]
BEFORE THE COURT are six discovery Motions, which were all filed by
Plaintiff Eric Jackson six to nine days before the discovery deadline of August 29,
2014:
1.
Plaintiff’s Motion [54] to Compel 30(b)(6) Deposition of Defendant
Bank of New York Mellon;
2.
Plaintiff’s Motion [58] for Leave to File Supplemental Expert Report;
3.
Plaintiff’s Motion [60] to Compel Production of Documents from
Defendant Recontrust Company, N.A.;
4.
Plaintiff’s Motion [62] to Compel Production of Documents and
Answers to Interrogatories from Defendant Bank of New York Mellon;
5.
Plaintiff’s Motion [64] to Compel Production of Documents and
Answers to Interrogatories from Defendant Bank of America; and
6.
Plaintiff’s Motion [66] to Amend Case Management Order Discovery
Deadline.
Defendant filed Responses [80, 81, 82, 83, 85, 86, 87, 88, 89, 90, 91, 92] to all
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six Motions, and Plaintiff timely filed two Replies [93, 96] in support of two of his
six Motions. Today, Plaintiff filed four Replies [97, 98, 99, 100] in support of his
remaining four Motions, but these Replies were filed well beyond his deadline for
filing Replies.
I. DISCUSSION
A.
All of Plaintiff’s discovery Motions are Untimely
August 29, 2014, was the discovery deadline and also the deadline for all
dispositive motions, including Daubert motions. Plaintiff filed the six discovery
Motions at issue six to nine days before the discovery deadline.1 Local Uniform
Civil Rule 7(b)(2)(B) provides
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.
L.U.Civ.R. 7(b)(2)(B).
A respondent has fourteen days to respond to a motion, and a movant
desiring to file a rebuttal may do so within seven days after the service of a
response. L.U.Civ.R. 7(b)(4). Plaintiff did not file the six discovery Motions at issue
in time for briefing to be completed prior to the discovery deadline. The discovery
deadline passed many days before Defendant was even required to respond to the
Motions. Plaintiff’s Motions were not filed sufficiently in advance of the discovery
1
Plaintiff filed Motion [54] on August 20, 2014; Motion [58] on August 22,
2014; and Motions [60], [62], [64], and [66] on August 23, 2014.
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deadline to allow the Court time to rule and the parties time to effectuate the
Court’s rulings. Furthermore, the parties were previously granted two extensions
of the discovery deadline. Agreed Mots. [20, 28].
Even assuming, as Plaintiff contends, that Defendant intentionally
obstructed his discovery efforts, Plaintiff acted at his own peril when he delayed
filing motions to compel and moving forward with depositions, based upon an
apparent assumption that he would be granted yet a third extension of the
discovery deadline.
[I]f 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 failures of the other party to
respond, even if that failure is in bad faith.
Wells v. Sears Roebuck and Co., No. Civ. A. 301CV35BN, 203 F.R.D. 240, 241 (S.D.
Miss. Oct. 26, 2001).
Plaintiff’s discovery Motions [54, 58, 60, 62, 64, 66] should be denied because
they are untimely.
B.
Plaintiff’s Motions [60, 62, 64] Requesting the Court to Compel Defendants to
Supplement Their Discovery Responses
Three of Plaintiffs’ Motions [60, 62, 64] request an order compelling
Defendant ReconTrust, Bank of New York Mellon, and Bank of America to respond
more fully to Plaintiff’s interrogatories and requests for production. Defendants
first filed responses to Plaintiff’s discovery requests in February 2014. Plaintiff
waited six months before filing the instant Motions [60, 62, 64] to compel. The
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docket reflects that Defendants supplemented their discovery responses two to four
times each. Defendants represent that they have produced “nearly 1,450 pages of
documents, [and] responded to 208 written discovery requests . . . .” Def.’s Mem.
[88] 7. Plaintiff delayed too long before moving to compel the relief he now seeks.
Trial is set to commence in three and a half months and has been set for over a
year. Defendants’ timely filed a Motion for Summary Judgment and Daubert
Motion, which are now pending before the District Judge. Reopening discovery at
this late hour would not “secure the just, speedy, and inexpensive determination” of
this action. Fed. R. Civ. P. 1. Plaintiff has not demonstrated that any failure by
Defendants to sufficiently respond to Plaintiff’s discovery requests warrants
reopening discovery. Plaintiffs’ Motions [60, 62, 64] to compel supplementary
discovery responses should be denied.
C.
Plaintiff’s Motion [54] to Compel 30(b)(6) Deposition of Defendant Bank of
New York Mellon
Plaintiff moves the Court to compel Defendant Bank of New York Mellon to
designate a corporate representative for a deposition pursuant to Federal Rule of
Civil Procedure 30(b)(6). Plaintiff filed this Motion to Compel nine days before the
discovery deadline. Plaintiff submits that he first approached Bank of New York
Mellon about a 30(b)(6) deposition on August 5, 2014, twenty-four days before the
discovery deadline. Pl.’s Mem. [55] 4. Plaintiff represents that on August 8, 2014,
Bank of New York Mellon indicated that it would not designate a corporate
representative. Id. Plaintiff did not file the instant Motion [54] to Compel until
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twelve days later, despite a looming discovery deadline. Plaintiff was not diligent
in seeking to depose a 30(b)(6) representative of Bank of New York Mellon, and his
Motion [54] to Compel 30(b)(6) Deposition of Defendant Bank of New York Mellon
should be denied.
D.
Plaintiff’s Motion [58] for Leave to File Supplemental Expert Report
Plaintiff requests “leave to file a supplemental expert report,” maintaining
that “[i]nformation regarding the full extent of mold damage to the subject property
has only recently been obtained by the Plaintiff and his counsel; counsel has
learned that specialized testing must be done in order to determine whether it is
even possible to restore the property to livable condition again.” Pl.’s Mem. [59] 1.
Plaintiff’s Motion [58] was filed almost four months after Plaintiff’s deadline for
designating experts and one week before the close of discovery.
Absent a finding of just cause, failure to make full expert
disclosures by the expert designation deadline is grounds for
prohibiting introduction of that evidence at trial
...
(C)
Discovery regarding experts must be completed
within the discovery period. The court will allow the
subsequent designation or discovery of expert
witnesses only upon a showing of good cause.
L.U.Civ.R. 26(a)(2).
Plaintiff admits that his “expert appraiser, Vernon C. Spencer, noted in his
expert report submitted to Defendants on May 1, 2014, that ‘there is apparent mold
and or mildew on the home.’” Pl.’s Mem. [59] 1. An April 28, 2014, Uniform
Residential Appraisal Report attached to Plaintiff’s Motion provides: “Due to the
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length of time the home has been vacant, a level one environmental audit is
recommended to determine if any toxic mold is present.” Ex. A [58-1].
Plaintiff was aware in April 2014 that an environmental audit was
recommended but did not schedule “a visual moisture inspection of the premises” by
IICRC Master Certified Water Damage Technician Richie Lott until August 21,
2014, eight days prior to the discovery deadline. Lott Letter [58-2]. In his August
21, 2014, letter report, Mr. Lott recommends that “a Certified Hygienist be
contacted as soon as possible . . . to determine the amount of mold that is inside the
home . . . [and] write a protocol on how the mold should be removed.” Id. at 2. Mr.
Lott’s letter provides that the Hygienist should then write a protocol on removing
the mold, lab results would be necessary, and a mold remediation might also be
required to be performed by a mold remediation company. Id. Another round of
mold samples would then be necessary to verify that the home is safe for occupancy.
Id.
Allowing Plaintiff to proceed as he requests would require that discovery be
reopened and extended for an indeterminate amount of time in order for a hygienist
to be hired, protocols to be written, mold samples to be collected and tested, a mold
remediation team to remove the mold, mold samples to be collected and tested
again, expert and counter-expert reports to be written, and experts to be deposed.
Trial is set, Defendants’ timely filed a Motion for Summary Judgment and Daubert
Motion, which are pending before the District Judge, and reopening discovery at
this point in the proceedings would not “secure the just, speedy, and inexpensive
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determination” of this action. Fed. R. Civ. P. 1. Plaintiff has not shown good cause,
and his Motion [58] for Leave to File Supplemental Expert Report should be denied.
E.
Plaintiff’s Motion [66] to Amend Case Management Order Discovery Deadline
In Motion [66], Plaintiff requests that the Court extend the discovery
deadline until forty-five days after the Court rules on Plaintiff’s discovery motions.
For the reasons previously stated, Plaintiff has not shown good cause for reopening
discovery. Plaintiff delayed too long before moving to compel the relief he now
seeks, and Plaintiff’s Motion [66] to Amend Case Management Order Discovery
Deadline should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff’s
Motion [54] to Compel 30(b)(6) Deposition of Defendant Bank of New York Mellon is
DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion
[58] for Leave to File Supplemental Expert Report is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion
[60] to Compel Production of Documents from Defendant Recontrust Company, N.A.
is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion
[62] to Compel Production of Documents and Answers to Interrogatories from
Defendant Bank of New York Mellon is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion
[64] to Compel Production of Documents and Answers to Interrogatories from
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Defendant Bank of America is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Plaintiff’s Motion
[66] to Amend Case Management Order Discovery Deadline is DENIED.
SO ORDERED AND ADJUDGED, this the 24th day of September, 2014.
s/ John C. Gargiulo
JOHN C. GARGIULO
UNITED STATES MAGISTRATE JUDGE
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