Short v. Equifax Information Services LLC

Filing 87

OPINION AND ORDER. Plaintiff's Motion to Compel # 52 is DENIED. Signed on 11/14/2016 by Magistrate Judge Youlee Yim You. (pvh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
PAULINE SHORT,
on behalf of herself and all others
similarly situated,

Case No. 3:14-CV-0471-YY
OPINION AND ORDER

Plaintiff,
v.
EQUIFAX INFORMATION
SERVICES LLC,
a foreign corporation,
Defendant.

YOU, Magistrate Judge:
Before this court is Plaintiff's Motion to Compel Responses to Plaintiff’s Interrogatories
and Request for Production of Documents (ECF #52). Because plaintiff’s motion is untimely, it
is DENIED.
FACTUAL BACKGROUND
Plaintiff Pauline Short (“Short”) brought this action against Defendant Equifax
Information Services LLC (“Equifax”) on March 24, 2014, alleging violations of the Fair Credit
Reporting Act, 15 U.S.C. §§ 1681-1681x. ECF #1.
Discovery was set to close 120 days later, on July 22, 2014. On July 21, 2014, Short
filed an Unopposed Motion for Extension of Discovery and PTO Deadlines (ECF #10). In this
motion, the parties requested that discovery be conducted in two phases, with the first phase

1 – OPINION AND ORDER

being limited to matters pertaining to class certification. ECF #10, at 3. The parties requested
that discovery be extended 150 days, until December 19, 2014. Id. The parties also proposed
that additional discovery be allowed if and after a class was certified. Id. This court granted the
motion and set the close of discovery regarding matters pertinent to class certification issues for
December 19, 2014, and the due date for any motion seeking class certification for January 9,
2015. ECF #11.
Short served her first set of interrogatories and her second request for production on
September 29, 2014. Robert S. Sola Decl. in Support of Short’s Motion to Compel. ECF #53,
Exs. A & B. These discovery requests are the subject of this motion to compel. ECF #52, at 3.
Equifax submitted objections and responses to these discovery requests on November 10, 2014.
ECF #53, Ex. C.
On December 15, 2014, Short filed a second Unopposed Motion for Extension of
Discovery and PTO Deadlines (ECF #23). Short represented as follows:
[t]he parties have served written discovery requests and responses
to those discovery requests. They have also produced documents
to each other. However, the parties agree that some of the
discovery responses need to be supplemented and additional
documents produced, but will not be able to accomplish that within
the current discovery deadline.
ECF #23, at 2. Short asked that the deadline for completion of discovery “for matters pertinent
to class certification issues” be extended an additional 150 days until May 18, 2015. Id. at 4.
On May 15, 2015, 417 days after filing suit, Short filed a third Unopposed Motion for
Extension of Discovery and PTO Deadlines. ECF #32. In part, the motion was based on Short’s
need to “investigate the various county records systems and search the county records on tax
liens.” Id. at 2. Having determined that “there is not a unified system for checking all county
records in the State,” Short noted she “will have to search each county’s records separately,”
Page 2 – OPINION AND ORDER

implying that she had not yet begun that task. Id. at 3 (emphasis added). She requested that the
deadline to complete discovery on matters pertinent to class certification be set 120 days later,
for September 16, 2015, with the motion for class certification due October 6, 2015. Id. at 4.
On September 16, 2015, the parties filed a Joint Motion to Stay Deadlines Pending
Settlement Discussions (ECF #34). The parties noted they had “engaged in substantial discovery
to date” and agreed that “limited discovery remains outstanding.” ECF #34, at 2 (emphasis
added). They also believed they had “sufficient information to meaningfully discuss resolution
of this matter, including a possible class-wide settlement.” Id. The parties engaged in good-faith
negotiations until January 13, 2016, when it became clear a settlement would not be reached.
See Joint Status Reports, ECF ##36, 38, 41.
On January 15, 2016, the court held a telephone status conference and set a new
discovery deadline for May 31, 2016, giving Short an additional 120 days to complete discovery.
ECF #45. At this point, understandably, the court had become weary of granting extensions and
told the parties that no further extensions would be granted. Roper Decl., ECF #61, ¶ 5.
On March 11, 2016, Short deposed Equifax’s designated corporate representative about
Equifax’s ability to identify putative class members with tax liens Equifax had allegedly
inaccurately reported as unreleased. Id. ¶ 6. On May 5, 2016, 773 days after the action was
filed, Short provided Equifax with tax lien records from four of thirty-six Oregon counties. Id.,
Ex. A. No certificates of release were provided, and no records custodian validated the
documents. Def.’s Reply in Support of Its Suppl. Brief, ECF #83, at 3. Over two years after
Short brought suit, tax lien records for thirty-two of thirty-six counties remained outstanding—
including those for Multnomah County, where Short is a resident.

Page 3 – OPINION AND ORDER

At Short’s request, the court held a second telephone conference on May 31, 2016, the
discovery cutoff date, and gave Short until June 17, 2016, to file an additional motion to extend
discovery, emphasizing Short’s need to justify further discovery extensions. Telephone Status
Conference, ECF #45. Equifax opposed any further extensions. On June 17, 2016, Short filed
her Motion to Compel, the subject of this order. ECF #52. Over 19 months had passed from the
time Equifax responded to the interrogatories and requests for production on November 10,
2014, and the time she filed the present motion.
On July 11, 2016, for the first time and 609 days after receiving Equifax’s November
2014 discovery responses, Short claims in her Reply Brief that Equifax did not comply FRCP
26(b)(2)(B). Short’s Reply in Support of her Motion to Compel, ECF #65, at 4. On August 17,
2016, Short produced records of tax liens for Multnomah County. Supplemental Response in
Opposition to Motion to Compel, ECF #69, Ex. D.
OPINION
“The district court is given broad discretion in supervising the pretrial phase of litigation,
and its decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed
unless they evidence a clear abuse of discretion.” Miller v. Safeco Title Ins. Co., 758 F.2d 364,
369 (9th Cir. 1985).
“Rule 16(b)(4) makes clear that the Court’s approval is required to amend a scheduling
order.” Mondares v. Kaiser Found. Hosp. et al., No. 10-CV-2676-BTM (WVG), 2011 WL
5374613, at *3 (S.D. Cal. Nov. 7, 2011). “A schedule may be modified only for good cause and
with the judge’s consent.” FRCP 16(b)(4).
A court’s scheduling order may not simply be ignored. “A scheduling order is not a
frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without

Page 4 – OPINION AND ORDER

peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (internal
citation omitted). Efficient treatment and resolution of cases is “successful only if the deadlines
are taken seriously by the parties, and the best way to encourage that is to enforce the deadlines.”
Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005); see also Janicki
Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir. 1994) (Rule 16 is to be “taken seriously.”).
“The use of orders establishing a firm discovery cutoff date is commonplace, and has impacts
generally helpful to the orderly progress of litigation, so that the enforcement of such an order
should come as a surprise to no one.” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1027 (9th Cir. 2006).
Here, on May 31, 2016, at the telephone conference requested by Short, which was also
the discovery cutoff date, the court gave Short until June 17, 2016, to file a written motion to
extend discovery to more fully explain her reasons for requesting an extension. Short ignored
the court’s order and instead filed a motion to compel. In fact, Short insists that she “is not
seeking an extension of the discovery deadline.” Short’s Reply in Support of her Motion to
Compel, ECF #65, at 1. Because no motion to extend discovery was filed and no order
extending discovery was issued, discovery concluded on May 31, 2016.
Short’s motion to compel is also untimely. “[N]umerous courts within the Ninth Circuit
have denied discovery motions filed after the close of discovery” as untimely. Rogers v. Brauer
Law Offices, PLC, No. CV-10-1693, 2011 WL 3665346, at *4 (D. Ariz. Aug. 22, 2011)
(compiling Ninth Circuit district court cases denying discovery motions filed after the close of
discovery). Federal courts consider the following factors in determining whether a motion to
compel filed after the discovery deadline is untimely or should be allowed: (1) the length of time
since the expiration of the deadline, (2) the length of time that the moving party has known about

Page 5 – OPINION AND ORDER

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 Worldwide, Inc. v. Sonia Invs., 237 F.R.D. 395, 398 (N.D.
Tex. 2006) (compiling federal district court cases, distilling the relevant factors commonly used,
and finding defendant’s motion to compel production of documents filed two weeks after
discovery deadline untimely).
When these factors are considered, Short’s motion to compel is unquestionably untimely.
First, the length of time since the expiration of the discovery deadline weighs in favor of denying
the motion. Short filed her motion to compel on June 17, 2016, seventeen days after the
expiration of the May 31, 2016 discovery deadline. ECF #52. See Days Inn Worldwide, Inc.,
237 F.R.D. at 398 (motion to compel filed two weeks after discovery deadline was untimely);
Ridge Chrysler Jeep LLC v. Daimler Chrysler Servs. N. Am., LLC, No. 03 C 760, 2004 WL
3021842, at *4 (N.D. Ill. Dec. 30, 2004) (motion to compel filed four days before close of
discovery was untimely); In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 332 (N.D. Ill.
2005) (“motions to compel filed after the close of discovery are almost always deemed
untimely”).
Second, the length of time Short has known about the discovery weighs heavily toward
denying the motion. Short has known about this discovery since September 29, 2014, when she
first asked Equifax to produce consumer reports containing inaccurate tax liens. Robert S. Sola
Decl. in Support of Short’s Motion to Compel. ECF #53, Exs. A & B. By her own admission,
Short knew she specifically needed to procure tax lien records from each of Oregon’s thirty six
counties as of May 15, 2015, 399 days before filing the motion to compel. ECF #32, at 4.

Page 6 – OPINION AND ORDER

Third, the discovery deadline has been extended four times. See Orders Granting
Discovery Extensions, ECF ##11, 23, 32, 45. In fact, after the last extension, the court told the
parties there would be no further extensions. Despite this admonition, Short filed a motion to
compel after the discovery deadline had passed.
Fourth, Short’s explanation for the delay is inadequate. Short’s allegation that Equifax
was unresponsive to her September 2014 discovery requests does not comport with her earlier
statement on September 16, 2015 that “limited discovery remained outstanding” and that she had
“sufficient information to meaningfully discuss resolution of this matter, including a possible
class-wide settlement.” ECF #34, at 2. In her first motion to extend the discovery deadline,
which she filed on July 21, 2014, Short stated that phase one of discovery would focus on
preparing the case for class certification. ECF #10, at 3. However, it was not until March 2016
that Short first deposed Equifax to determine what Short needed to provide Equifax for it to
produce a workable data set.
Short cites Soutter v. Equifax Info. Servs. LLC, 307 F.R.D. 183, 196–98 (E.D. Va. 2015),
alleging her discovery situation is analogous to that case. Motion to Compel, ECF #52, at 11–12.
However, the Fourth Circuit reversed and remanded Soutter in 2012 noting that “Soutter’s
[discovery] efforts were counterproductive in that the data she ordered did not even contain her
own name.” Soutter v. Equifax Info. Servs., LLC, 498 Fed. Appx. 260, 263 (4th Cir. 2012)
(unpublished). Here, similarly, Short did not provide Equifax with Multnomah County records
of tax liens until filing her reply to Equifax’s Response to her Motion to Compel on August 17,
2016. ECF #69, Ex. D.
Fifth, while no dispositive motions have been scheduled or filed, that is simply because
discovery has not been completed.

Page 7 – OPINION AND ORDER

Sixth, the age of the case weighs in favor of denying the motion to compel. This case has
been pending for 31 months. Nineteen months passed between when Short received responses to
her September 2014 discovery requests and when she filed her motion to compel.
Finally, the prejudice to Equifax—by being asked to repeatedly comply with discoverydeadline extensions, by being assured that limited discovery remained outstanding, and now by
being asked to respond to and produce documents for discovery requests that were filed over a
year ago—weighs in favor denying the motion.1
After considering the above factors, the court finds no basis to allow Short’s motion to
compel, which was filed after the discovery cutoff date. It is untimely and therefore denied.
Even if Short’s motion to compel could be construed as a motion for extension of
discovery (which Short says she is not requesting), Short has failed to establish good cause to
justify such a request. “Good cause” is an inquiry that focuses on the reasonable diligence of the
moving party.” Noyes v. Kelly Servs., 488 F.3d 1163, 1174 n. 6 (9th Cir. 2007) (citing Johnson,
975 F.2d at 609). “[T]he focus of the Rule 16(b) inquiry is upon the moving party’s reasons for
seeking modification.” Johnson, 975 F.2d at 609. “If that party was not diligent, the inquiry
should end.” Id. Here, as discussed above, Short did not act diligently during discovery.
Accordingly, there would be no good cause to extend the discovery deadline even if she had
made such a request.
///
///
///
///

1

The eighth factor—disruption to the court—is not relevant to the analysis and therefore not discussed.

Page 8 – OPINION AND ORDER

ORDER
Plaintiff’s Motion to Compel [#52] is DENIED.
DATED this 14th day of November 2016.

/s/ Youlee Yim You 
________________________________
Youlee Yim You
United States Magistrate Judge

Page 9 – OPINION AND ORDER