Anderson vs. Caldwell County Sheriff's Office, et al

Filing 208

ORDER denying 194 Motion to Compel. Signed by Magistrate Judge Dennis Howell on 12/14/11. (nll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:09cv423
JERRY ANDERSON,

)
)
Plaintiff,
)
)
v.
)
)
CALDWELL COUNTY SHERIFF’S
)
OFFICE, et al.,
)
)
Defendants.
)
___________________________________ )

ORDER

Pending before the Court is the Motion to Compel [# 194]. Discovery in
this case closed August 1, 2011. The motion deadline was September 1, 2011.
Trial was scheduled for January 9, 2012. On November 10, 2011, Plaintiff moved
to Compel Defendants to produce documents and information requested during
discovery. The time for moving to compel Defendants to produce documents or
respond to interrogatories having passed, the Court DENIES Plaintiff’s motion [#
194].
I.

Analysis

Rule 37 of the Federal Rules of Civil Procedure does not specify a specific
time limit for the filing of a motion to compel. See Fed. R. Civ. P. 37; PCS
Phosphate Co. v. Norfolk Southern Corp., 238 F.R.D. 555, 558 (E.D.N.C. 2006).
Absent a specific order from the Court in the scheduling order, a party must
generally move to compel a party to comply with a discovery request prior to the
close of discovery or the motion is untimely. See Days Inn Worldwide, Inc. v.
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Sonia Invs., 237 F.R.D. 395, 397-98 (N.D. Tex. 2006) (collecting cases); Rudolph
v. Buncombe Cnty Gov’t, No. 1:10cv203, 2011 WL 5326187 (W.D.N.C. Nov. 4,
2011) (Howell, Mag. J.); Lane. v. Lucent Techs., Inc., No. 1:04cv789, 2007 WL
2079879 (M.D.N.C. Jul. 13, 2007). Courts in this district have repeatedly held that
a motion to compel filed after the close of discovery and after the expiration of the
motion deadline in the scheduling order is untimely. See e.g., Greene v. Swain
Cnty P’ship for Health, 342 F. Supp. 2d 442, 449 (W.D.N.C. 2004) (Thornburg, J.)
(denying motion to compel as untimely filed twenty-one days after the discovery
deadline and six days after the motions deadline); ABT v. Juszczyk, No.
5:09cv119, 2011 WL 2375843 (W.D.N.C. Jun. 9, 2011) (Keesler, Mag. J.)
(denying motion to compel as untimely filed forty-one days after the close of
discovery and thirty-nine days after the motions deadline); Shenoy v. CharlotteMecklenburg Hosp. Auth., No. 3:08cv125, 2011 WL 3564424 (W.D.N.C. Aug. 12,
2011) (Keesler, Mag. J.).
Discovery in this case closed August 1, 2011, and the motion deadline was
September 1, 2011. Plaintiff, however, did not file his Motion to Compel until
November 10, 2011, over three months after the close of discovery and one month
after the extended motion deadline. The only explanation that Plaintiff offers for
the late filing of his Motion to Compel is that Rule 37 does not set a specific time
for the filing of a motion to compel and that he notified Defendants of his concerns
regarding the discovery responses prior to the close of discovery. (Pl.’s Reply
Support Mot. Compel. pp. 1-2.) Neither of these reasons justifies the late filing of

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Plaintiff’s motion, and nothing prevented Plaintiff from timely filing a motion to
compel. The time for filing discovery motions and moving to compel the
production of documents or the answers to interrogatories has long since passed.
Accordingly, the Court DENIES as untimely the Motion to Compel

II.

Conclusion

The Court DENIES the Motion to Compel [# 194].

Signed: December 14, 2011

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[# 194].