Negron v. Defelice et al

Filing 43

ORDER granting in part 31 Motion to Compel. So Ordered by Judge Landya B. McCafferty.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jo Ann Negron
v.

Case No. 17-cv-95-LM
Opinion No. 2018 DNH 104

Richard DeFelice, et al.

O R D E R
Before the court is a motion to compel filed by plaintiff
Jo Ann Negron (doc. no. 31).

She seeks interrogatory responses

and documents that defendants Richard DeFelice and Valentino’s
Italian Market of Nashua, LLC, allegedly failed to produce.
Defendants object.

The court held a hearing on May 11, 2018,

and took the matter under advisement.

For the following

reasons, Negron’s motion is granted in part.
Generally, the discovery that Negron requests relates to
two sets of individuals.

The first set consists of individuals

that Negron has already identified as relevant actors in the
complaint, including Wellington DeSouza (a male comparator),
Brenden Mazur (same), and herself.

Negron seeks, among other

things, more information and records about their rate of pay,
hours worked, and job-performance reviews.
consists of all other employees.

The second set

Negron wants similar

information pertaining to all employees so that she can
investigate whether other male comparators exist.

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In addition,

Negron requests tax returns from defendants for the years 20132016.

Negron asserts that all of the discovery that she

requests is relevant to her claim under the Equal Pay Act.

See

29 U.S.C. § 206(d)(1) (stating that no employer may
“discriminate . . . between employees on the basis of sex by
paying wages to employees in such establishment at a rate less
than the rate at which he pays wages to employees of the
opposite sex”).
Defendants primarily contend that the court should deny the
motion as untimely.

Where, as here, the scheduling order fixes

no specific deadline for filing motions to compel, courts “look
to the deadline for completion of discovery.”

Days Inn

Worldwide Inc. v. Sonia Invs., 237 F.R.D. 395, 397 (N.D. Tex.
2006) (collecting cases); David v. Signal Int’l LLC, No. 081220, 2014 WL 6612598, at *2 (E.D. La. Nov. 19, 2014).
measure, Negron’s motion is indeed late.

By that

Discovery was to be

completed on March 1, Negron sent an email to defense counsel
informally seeking the discovery at issue on March 23, and she
did not file the present motion until April 4.
That fact does not necessarily doom Negron’s motion,
however.

A court may still consider a late motion to compel,

depending on the circumstances of the case.

In a thorough

examination of the issue, one court distilled the case law into
a list of factors that should be considered in deciding whether

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to permit a motion to compel filed after the completion of
discovery:
(1) the length of time since the expiration of the
deadline,
(2) the length of time that the moving party has known
about the discovery,
(3) whether the discovery deadline has been extended,
(4) the explanation for the tardiness or delay,
(5) whether dispositive motions have been scheduled or
filed,
([6]) the age of the case,
([7]) any prejudice to the party from whom late discovery
was sought, and
([8]) disruption of the court's schedule.
Days Inn, 237 F.R.D. at 398.

The parties agree that this multi-

factor test governs the issue, so the court applies it here.
Based on a review of these factors, the court concludes
that the untimeliness of Negron’s motion precludes her from
seeking some, but not all, of her requested discovery.
Specifically, to the extent Negron seeks discovery of all
employees in order to investigate potential male comparators,
these factors weigh against consideration of the motion.

But,

to the extent Negron seeks narrow discovery about the identified
male comparators and herself, the factors weigh in favor of
permitting the motion.

The court will discuss the requested tax

returns separately.
The court finds the following factors material in its
determination.

The first, second, and fourth factors—the length

of time since the discovery deadline, the length of time the

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moving party has known about the discovery, and the explanation
for the delay—weigh marginally against Negron.

At bottom, the

present predicament is one of Negron’s own making.

Negron did

not propound discovery until January 10, 2018, less than two
months before the close of discovery.

Given the thirty days

that defendants would have to respond to her requests, Negron
created a circumstance in which she would have a very short
timeframe to review discovery and resolve any disputes that
might arise. 1
Moreover, the court is not persuaded by Negron’s
explanation for the delay—that she only realized the
significance of the omitted discovery when she learned of
defendants’ affirmative defense after DeFelice’s and DeSouza’s
depositions.

That defense (i.e., that any pay differential was

attributable to factors other than sex) is consistent with the
explanation defendants set forth in their answer to the
complaint.

See doc. no. 7.

Thus, Negron should have been aware

of the significance of the omitted discovery when she reviewed
defendants’ responses in mid-February.

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It is also worth noting that the scheduling order stated
that “the court considers the deadline for the completion of
discovery to be a deadline by which discovery is to be completed
– not a deadline by which discovery is to be served.” Doc. no.
19 at 1.
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Still, within that procedural context, the court finds the
delay understandable.

Negron propounded discovery close to the

deadline, and attempted to juggle document review with other
responsibilities, including depositions and drafting a demand
letter.

Negron did not initially realize that defendants had

failed to provide some discovery, and she moved relatively
quickly after the discovery deadline to rectify the mistake.
The court views this as a relatively minor, excusable oversight.
The more significant factors under these circumstances are
prejudice to defendants and disruption of the court’s schedule.
As defendants noted at the hearing, they could incur prejudice
to the extent Negron is allowed broad discovery to investigate
other potential male comparators. 2

That is, if Negron is allowed

discovery for the purpose of enlarging or modifying her theories
of liability, defendants would be placed at a disadvantage given
the completion of discovery and the filing of dispositive
motions.

And it would disrupt the court’s schedule, insofar as

the parties would need additional time to investigate any new
comparators.

Furthermore, in light of the contentious stances

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Defendants also argue that they were prejudiced because
Negron violated an agreement to permit Negron to depose DeSouza
after the discovery deadline on the understanding that she would
not seek further discovery. Negron disputes that
characterization of the agreement. As the court noted at the
hearing, the court finds each side’s interpretation of the
agreement reasonable, and so gives no weight to this argument.
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the parties took in the present discovery dispute, the court has
some concern that broad discovery will lead to more disputes,
requiring judicial intervention and delaying the case further.
By contrast, narrow discovery related to the identified male
comparators would not pose the same prejudice to defendants or
create a risk of disrupting the orderly pace of this litigation.
For these reasons, the court will permit Negron’s late
motion to compel only to the extent it seeks discovery related
to the identified male comparators (DeSouza and Mazur) or
herself.

Because defendants do not dispute that the requested

discovery, as narrowed by the court, is relevant and
discoverable, Negron’s motion is granted to that extent.

In

order to allow expeditious consideration of the parties’ motions
for summary judgment, Negron will not be permitted to supplement
her summary-judgment briefing with any of the discovery she
obtains as a result of the motion to compel.
The court turns to the only remaining item: defendants’ tax
returns.

Unlike the discovery discussed above, the court finds

Negron’s excuse less meritorious with respect to the tax
returns.

In their February 9 response to Negron’s request for

production, defendants flatly stated that the tax returns were
not reasonably calculated to lead to admissible evidence.

Thus,

Negron was on notice of a potential dispute in mid-February, and
she nonetheless made no effort to resolve it until mid-March.

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Her delay is material because courts employ a more stringent
standard when evaluating whether tax returns are discoverable.
See Buntzman v. Springfield Redevelopment Auth., 146 F.R.D. 30,
32 (D. Mass. 1993) (discussing standard).

Negron should have

acted in a timely manner to place the issue before the court so
that it could be fully developed and resolved.

As it stands,

neither party has addressed this standard, and the court is not
inclined to allow further litigation of the question.
Therefore, the court will not permit Negron’s motion to compel
to the extent it seeks defendants’ tax returns.
Finally, the court denies the parties’ requests for
attorney’s fees.

If a motion to compel is granted in part and

denied in part, the court “may, after giving an opportunity to
be heard, apportion the reasonable expenses for the motion.”
Fed. R. Civ. P. 37(a)(5)(C) (emphasis added).

Given the

substantial justifications for the parties’ positions, the court
does not consider apportionment appropriate.

CONCLUSION
For the reasons stated herein, the motion to compel (doc.
no. 31) is granted in part.

The court orders the following:

•

Defendants shall respond fully to Interrogatories 7,
14, and 15.

•

Defendants shall respond to Interrogatories 8, 9, 13,
and 16, and Request for Production 11, but only to the

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extent that they relate to Wellington DeSouza, Brenden
Mazur, or Jo Ann Negron.
•

If a dispute over defendants’ responses arises, the
parties shall meet and confer within 72 hours of
receipt of defendants’ responses. If the meet and
confer does not resolve the dispute, the party seeking
relief shall file a motion with court within 48 hours
of the meet and confer. The court will not consider
any untimely motions.

SO ORDERED.

____________________________
Landya McCafferty
United States District Judge
May 17, 2018
cc:

Megan E. Douglass, Esq.
Benjamin T. King, Esq.
J. Daniel Marr, Esq.
Martha Van Oot, Esq.

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