RDLG, LLC v. RPM Group, LLC et al

Filing 86

ORDER striking as untimely 83 Motion to Compel. Signed by Magistrate Judge Dennis Howell on 08/06/12. (Pro se litigant served by US Mail.)(emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:10cv204
RDLG, LLC,
Plaintiff,
v.
RPM GROUP, LLC; RPM GROUP
BROKERAGE, LLC; FRED M.
LEONARD, III; JESSICA LEWIS
LEONARD; JASON BENTON;
NICK JAMES; and DEXTER
HUBBARD,
Defendants.
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ORDER

Pending before the Court is the Motion to Compel [# 83]. Discovery in this
case closed April 1, 2012. The motion deadline was May 1, 2012. On August 2,
2012, Plaintiff moved to compel Defendant Chip Leonard to appear for a
deposition and for Defendants RPM Group, LLC and RPM Group Brokerage, LLC
to respond to Plaintiff’s Second and Third Requests for Production of Documents.
The time for moving to compel Defendants to produce documents or appear for a
deposition, however, has long since passed. Accordingly, the Court STRIKES
Plaintiff’s motion as untimely [# 83].
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
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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.
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 April 1, 2012, and the motion deadline was
May 1, 2012. Plaintiff, however, did not file its Motion to Compel until August 2,
2012, over four months after the close of discovery and three month after the
motion deadline. Although the parties may have continued conducting discovery

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after the Court’s deadline by mutual agreement, they may not seek a Court Order
compelling the opposing party to respond to such discovery. Because the time for
filing discovery motions and moving to compel the production of documents or the
attendance at a deposition has long since expired, the Court STRIKES as untimely
the Motion to Compel [# 83].
II.

Conclusion

The Court STRIKES the Motion to Compel [# 83].

Signed: August 6, 2012

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