Morgan v. Vogler Law Firm, P.C. et al
MEMORANDUM AND ORDER re: 47 MOTION for Leave to File Answer Out of Time filed by Vincent D. Vogler, Vincent V. Vogler, Defendant Vogler Law Firm, P.C., 48 MOTION to Compel Answers to Discovery filed by Defendant Ronald K. Reynolds, 44 MOTION to Compel Discovery Responses from Defendant Reynolds filed by Plaintiff Jesse L. Morgan, 46 MOTION for Leave to File Answer Out of Tme filed by Defendant Ronald K. Reynolds, 45 MOTION to Compel Discovery Responses from Vogler Law Firm, Vincent V. Vogler, and Vincent D. Vogler filed by Plaintiff Jesse L. Morgan. IT IS HEREBY ORDERED that plaintiff's Motions to Compel Against Defendants (#44, #45) are GRANTED. IT IS FURTHER ORDERED that defendants' Motions for Leave to File Answer Out of Time (#46, #47) are DENIED. IT IS FURTHER ORDERED that defendant Reynolds's Motion to Compel against Plaintiff (#48) is DENIED. IT IS FURTHER ORDERED that defendants shall pay plaint iff's counsel's costs and fees required to file the motions to compel against them.IT IS FURTHER ORDERED that defendants shall respond to discovery requests served upon them by plaintiff no later than April 24, 2017. Failure to do so may re sult in further sanctions. IT IS FINALLY ORDERED that the dispositive motions deadline is continued from April 21, 2017 to April 28, 2017 in light of the above orders. (Dispositive Motions due by 4/28/2017.) Signed by District Judge Stephen N. Limbaugh, Jr on 4/17/17. (CSG)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JESSE L. MORGAN,
THE VOGLER LAW FIRM, P.C., et al., )
Case No. 4:15-CV-1654 SNLJ
MEMORANDUM & ORDER
Plaintiff brings this lawsuit against his former landlord Ronald K. Reynolds and
law firm Vogler Law Firm, and others, that were involved in plaintiff’s eviction and who
filed a collection lawsuit against plaintiff. Remaining counts in this case are Count I for
Violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq.
(“FDCPA”), against the Vogler Law Firm, Vincent D. Vogler, and Vincent V. Vogler
(“Vogler defendants”), and Count II for Violations of the Missouri Merchandising
Practices Act, § 407.010 RSMo (“MMPA”) against Ronald Reynolds.
Several motions are currently before the Court.
Motions to Compel Against Defendants (#44, #45)
The Case Management Order in this case stated that discovery was to be
completed by February 17, 2017. Plaintiff served each set of defendants with
interrogatory requests, requests for production, and requests for admissions on January
18, 2017; responses to those requests were due on or before the February 17 close-of-
discovery deadline. Although the defendants responded to the plaintiff’s requests for
admission, neither set of defendants responded to either plaintiff’s interrogatories or
requests for production by the February 17, 2017 deadline. Plaintiff’s counsel attempted
to confer with defense counsel regarding the missing discovery responses, but plaintiff’s
counsel has not received an answer. Similarly, no defendant has responded to plaintiff’s
motion to compel. The time for doing so has passed. Defendants shall respond to
plaintiff’s outstanding discovery within seven days of this Order, and they shall pay
plaintiff’s counsel’s costs and fees required to file the motions. Failure to respond to the
discovery requests in compliance with this Order will result in further sanctions.
Motions for Leave to File Answer Out of Time by Defendants (#46, #47)
Although neither set of defendants filed a response to plaintiff’s motions to
compel, they did file motions for leave to file their Answers out of time just one day and
two days after plaintiff filed the motions to compel. This Court denied in part and
granted in part defendants’ motions to dismiss plaintiff’s complaint on July 22, 2016
(#38). Despite having participated in scheduling conferences and discovery since that
time, neither set of defendants had filed an Answer to the counts remaining in plaintiff’s
The Court may extend the time for filing an Answer if the moving party
demonstrates “good cause” for the additional time. Fed. R. Civ. P. 6(b). If the deadline
for filing an Answer has already expired, however, the moving party must prove that the
failure to file a timely answer was the result of “excusable neglect.” Id. at 6(b)(2). That
showing must be made “with particularity.” Fed. R. Civ. P. 7(b)(1)(B). The Supreme
Court held that whether a party’s failure to meet a deadline is excusable is an equitable
determination, “taking account of all the relevant circumstances surrounding the party’s
omission.” Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395
(1993). The Court considers “(1) the danger of prejudice to the non-moving party; (2) the
potential impact on the proceedings; (3) the reason for the delay, including whether it was
within the party’s control; and (4) whether the party acted in good faith.” Maritz, Inc. v.
C/Base, Inc., 4:06CV761 CAS, 2007 WL 2302511, at *2 (E.D. Mo. Aug. 7, 2007) (citing
Pioneer, 507 U.S. at 395; Sugarbaker v. SSM Health Care, 187 F.3d 853, 855-56 (8th
First, plaintiff contends he will be prejudiced if the defendants are allowed to file
their answers now, six months late and after the close of discovery. Plaintiff states that
all of his decisions during discovery were based on the understanding that defendants had
admitted the factual allegations in his Complaint, other than those allegations pertaining
to damages. Plaintiff believed that defendants had admitted those allegations because
Federal Rule of Civil Procedure 8(b)(6) states that “[a]n allegation --- other than one
relating to the amount of damages --- is admitted if a responsive pleading is required and
the allegation is not denied.” Plaintiff says that it reasonably believed that defendants
were contesting the issue of damages but not liability in the wake of this Court’s motion
to dismiss Memorandum & Order, which addressed matters such as the statute of
limitations for defendants’ underlying lawsuit against plaintiff. In addition, defendants
did not file disclosures under Federal Rule of Civil Procedure 26, and Rule 37 prohibits a
party from relying on undisclosed witnesses or documents to support its defenses. See
Fed. R. Civ. P. 26(a) and 37(c). (Notably, defendant Reynolds filed his Rule 26
disclosures late; the Vogler defendants never filed disclosures at all.) Further, plaintiff’s
counsel emailed defense counsel one month after defendants’ responsive pleading
deadline has passed outlining the fact that defendants’ liability no longer seemed to be at
issue and offering to resolve the matter through settlement. Defendants did not respond
to plaintiff’s settlement offer or otherwise challenge counsel’s suggestion that liability
was not as issue.
Thus, during discovery, plaintiff used his entire “allotment” of interrogatories and
otherwise prepared discovery requests and requests for admission focused solely on
damages. Furthermore, dispositive motions are due April 21, 2017, and plaintiff has
expended significant time preparing summary judgment motion based on the defendants’
admissions. Plaintiff would thus be prejudiced if the defendants could now change their
stance and deny liability.
Second, the potential impact of allowing defendants to file their Answers at this
late stage is substantial. As indicated above, discovery has closed, and, in part because
the Court allowed the parties time to fully brief this matter, dispositive motions are
imminent. This case is already almost two years old. Allowing defendants to Answer
now would necessitate a new Case Management Order and a new trial date.
Third, the defendants provided no reason for the delay at all. Plaintiff’s counsel
even e-mailed counsel for both sets of defendants on September 19, 2016, one month
after the Answer deadline passed, suggesting settlement and noting “there remains little
question as to the issue of liability” (#49-1). Defendants’ failure to respond to that e-mail
(five months before the instant motions were filed) and all other circumstances point to
the fact that the failure to Answer was a conscious choice by defendants. Even after
plaintiff filed a detailed briefing articulating all the reasons why this Court should deny
the defendants’ attempt to belatedly file Answers, defendants chose not to file a reply.
Fourth, in light of the above matters, as plaintiff points out, whether defendants are
operating in good faith is open to question. Their litigation tactics are puzzling at best.
The history of missed deadlines and ignored emails would appear more open to
interpretation and excuse but for the fact that the two sets of defendants have separate
counsel with separate email addresses.
Considering all the circumstances above, the Court will deny defendants’ motions
to answer out of time.
Motion to Compel Against Plaintiff (#48)
Finally, defendant Reynolds moves to compel plaintiff to respond to Reynolds’s
discovery requests that were served on January 20, 2017. The deadline for response was
February 21, 2017, which was after the February 17 close of discovery deadline set by
this Court’s Case Management Order. Plaintiff objected because the discovery requests
were served too late such that the response date was due after the close of discovery.
Although defendant states that he emailed a letter to plaintiff’s counsel on
February 28, requesting that plaintiff respond to the discovery requests by March 3,
defendant did not certify that he made a good faith effort to resolve this discovery dispute
with opposing counsel before filing his motion, as required by the Local Rules and
Federal Rule of Civil Procedure 37(a)(1). “The Court will not consider any motion
relating to discovery and disclosure unless it contains a statement that movant’s counsel
has conferred in person or by telephone with the opposing counsel in good faith or has
made reasonable efforts to do so, but that after sincere efforts to resolve their dispute,
counsel are unable to reach an accord.” L.R. 37-3.04. Further, the statement must “recite
the date, time and manner of such conference, and the names of the individuals
participating therein, or shall state with specificity the efforts made to confer with
opposing counsel.” Id. Here, defendant emailed his letter demand for compliance to
plaintiff (which itself did not comply with the Rules) just minutes before filing his motion
to compel. The Court must deny defendant’s motion to compel. See, e.g., Turner v.
Roach, No. 1:11cv168 SNLJ, 2012 WL 1110114, at *2 (E.D. Mo. Apr. 3, 2012).
IT IS HEREBY ORDERED that plaintiff’s Motions to Compel Against
Defendants (#44, #45) are GRANTED.
IT IS FURTHER ORDERED that defendants’ Motions for Leave to File Answer
Out of Time (#46, #47) are DENIED.
IT IS FURTHER ORDERED that defendant Reynolds’s Motion to Compel
against Plaintiff (#48) is DENIED.
IT IS FURTHER ORDERED that defendants shall pay plaintiff’s counsel’s costs
and fees required to file the motions to compel against them.
IT IS FURTHER ORDERED that defendants shall respond to discovery requests
served upon them by plaintiff no later than April 24, 2017. Failure to do so may result in
IT IS FINALLY ORDERED that the dispositive motions deadline is continued
from April 21, 2017 to April 28, 2017 in light of the above orders.
Dated this 17th day of April, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT
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