American Contractors Indemnity Company v. American Bonding Company, Inc.

Filing 107

ORDER denying 96 Motion to Compel; denying 106 Motion. Signed by Magistrate Judge Mark R. Abel on 3/12/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
American Bonding Company, Inc.,
Plaintiff

:

American Contractors Indemnity
Company,

Case No. 2:10-cv-00441

:

v.

:

Judge Sargus

:

Magistrate Judge Abel

:
Defendant
:

Order
On March 9, 2012, counsel for the parties participated in a telephone conference
with the Magistrate Judge about American Bonding Company's March 5, 2012 motion to
com-pel (doc. 96) and its March 9, 2012 motion for the Court to conduct an investigation
(doc. 106).
Both of these motions assert that American Contractors Indemnity Company's
responses to discovery requests did not comply with the Federal Rules of Civil Procedure.
The original deadline for completing all discovery was November 30, 2010 (doc. 17). That
deadline was extended three times. The final deadline for completing all discovery was
December 16, 2011 (doc. 70). The motion to compel addresses multiple issues, many
related to ACIC's August 31, 2011 responses to ABC's written discovery. ABC gives no
explanation as to why its motion to compel was not filed until more than 6 months later.
The deadline for filing case-dispositive motions was January 13, 2012. Yet ABC
waited until March 9 to file its motion to compel; and it offers no explanation for its delay.

My scheduling orders clearly state that all discovery must be completed by the
deadline. ABC did not move to extend the December 16, 2011 discovery deadline, nor did
it move to compel discovery before that deadline passed.
If ABC's motions are treated as requests to extend the scheduling deadlines, then they
are governed by Rule 16(b)(4) which provides that “[a] schedule may be modified only for

good cause and with the judge’s consent.” In reviewing a district court’s denial of
additional time for discovery, courts consider five factors: “(1) when the moving party
learned of the issue that is the subject of discovery; (2) how the discovery would affect the
ruling below; (3) the length of the discovery period; (4) whether the moving party was
dilatory; and (5) whether the adverse party was responsive to . . . discovery requests.”
Dowling v. Cleveland Clinic Found., 593 F.3d 472, 478 (6th Cir. 2010). “The overarching
inquiry in these overlapping factors is whether the moving party was diligent in pursuing
discovery.” Id. Here none of the factors favors extending the scheduling deadlines.
Accordingly, American Bonding Company's March 5, 2012 motion to compel (doc.
96) and its March 9, 2012 motion for the Court to conduct an investigation (doc. 106) are
DENIED.
ACIC requests that the Court strike docs. 96 and 106 from the file because they
contain scurrilous statements. Rule 12(f), Fed. R. Civ. P. Stanfield v. Horn, 704 F. Supp.
1486, 1487 (M.D. Tenn. 1988). Defendant’s counsel will prepare a proposed order striking
the documents from the Court’s file and provide it to ABC's counsel. If the parties agree to
the

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order, they will submit it to me. If not, defendant is free to file a motion to strike under
Rule 12(f), Fed. R. Civ. P.

s/Mark R. Abel
United States Magistrate Judge

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