Wilkins v. Brandman University

Filing 77

Opinion and Order. The Court DENIES Plaintiff's Motion (# 61 ) to Compel. IT IS SO ORDERED. See attached order for details. Signed on 6/27/19 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DEMETRYE WILKINS,
Plaintiff,
v.
BRANDMAN UNIVERSITY,
Defendants.
BETH ANN CREIGHTON
LAURA KOISTINEN
Creighton & Rose, PC
Powers Building
65 S.W. Yamhill Street, Suite 300
Portland, OR 97204
[phone]
Attorneys for Plaintiff
J. MICHAEL PORTER
MATTHEW A. TRIPP
Miller Nash Graham & Dunn LLP
111 S.W. Fifth Avenue
Suite 3400
Portland, OR 97204
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

3:17-cv-01099-BR
OPINION AND ORDER

BROWN, Senior Judge.
This matter comes before the Court on Plaintiff’s Motion
(#61) to Compel.

For the reasons that follow, the Court DENIES

Plaintiff’s Motion.

BACKGROUND
On July 14, 2017, Plaintiff Demetrye Wilkins filed a
Complaint against Brandman University, his former employer,
alleging claims for
(1)

Race discrimination relating to events that occurred
from October 2014 to February 2016 in violation of
Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981; and
Oregon Revised Statutes § 659A.030(1)(a) and (b) and

(2)

Retaliation against Plaintiff for opposing
discrimination relating to events that occurred from
October 2014 to February 2016 in violation of Title
VII, 42 U.S.C. § 2000e-3; Oregon Revised Statutes
§ 659A.030(f); and Oregon Revised Statutes § 659A.199.

On April 9, 2018, Magistrate Judge John Jelderks granted
Plaintiff’s Unopposed Motion for Extension of Discovery and PTO
Deadlines and directed discovery to be completed by July 12,
2018.
On July 26, 2018, Magistrate Judge John Jelderks granted
Plaintiff’s Unopposed Motion for Extension of Discovery and PTO
2 - OPINION AND ORDER

Deadlines and directed discovery to be completed by September 10,
2018.
On September 28, 2018, two weeks after the close of
discovery, the parties filed a Joint Motion to Stay Case
Deadlines while they conducted a settlement conference.
Magistrate Judge Jelderks granted the Motion on October 1, 2018.
On January 16, 2019, the parties engaged in a settlement
conference, but they did not settle the matter.
On February 14, 2019, Plaintiff filed a Motion for Extension
of Discovery and PTO Deadlines in which he sought an extension of
time to reopen discovery to depose two witnesses (Phillip
Doolittle and Dana Gelfand) and to serve an unspecified number of
document requests.

Defendant opposed Plaintiff’s Motion on the

ground that the Court has already given Plaintiff “ample
opportunity to obtain the information [he seeks] by discovery in
[this] action.”

Fed. R. Civ. P. 26(d)(2).

Specifically,

Defendant noted discovery had been open for 376 days during which
time Plaintiff took nine depositions and received 1,412 pages of
documents from Defendant.

In addition, Defendant asserted

Plaintiff had more than enough time to depose Gelfand and to seek
additional documents because Gelfand was identified as a witness
with “[k]nowlege of plaintiff’s conduct, performance, and work
environment and the decisions to discipline plaintiff” in
Defendant’s initial disclosures, which were served on Plaintiff
3 - OPINION AND ORDER

on October 25, 2017.

Plaintiff did not explain why he could not

have deposed Gelfand in the 320 days between his receipt of
initial disclosures and the September 10, 2018, discovery
deadline.

Defendant conceded it did not identify Doolittle in

its initial disclosures, but explained Doolittle is Defendant’s
Executive Vice Chancellor of Finance and Administration and Chief
Financial Officer.

Doolittle was not Plaintiff's supervisor or

manager, and the only evidence concerning his involvement in the
events underlying this case is that he was informed of and
concurred with the pending termination of Plaintiff's employment.
Nevertheless, Plaintiff learned about Doolittle's limited
involvement in the events at issue during depositions that took
place on June 13 and 14, 2018.

Plaintiff, however, failed to

depose Doolittle in the 88 days between depositions and the
September 10, 2018, discovery deadline.

Finally, Defendant noted

Plaintiff knew about the additional documents that he eventually
sought in his Motion and was aware of both witnesses by July 26,
2018, at the latest as established by the fact that Plaintiff’s
counsel referred to them in conversation with defense counsel at
that time.
On February 20, 2019, Magistrate Judge Jelderks denied
Plaintiff’s Motion to Reopen Discovery, but he granted Plaintiff
leave to depose Doolittle and Gelfand no later than April 15,
2019.
4 - OPINION AND ORDER

On March 4, 2019, the matter was reassigned to this judicial
officer.
On April 9, 2019, the Court held a Rule 16 Conference and
set a deadline of May 7, 2019, for dispositive motions.
On May 7, 2019, Defendant filed a Motion for Summary
Judgment.
On May 24, 2019, Plaintiff filed a Motion (#61) to Compel.
The Court took Plaintiff’s Motion to Compel under advisement on
May 31, 2019.

DISCUSSION
In his Motion to Compel Plaintiff moves the Court to compel
Defendant to produce documents responsive to Plaintiff’s Request
for Production Numbers 1, 4, and 5.
Defendant objects to Plaintiff’s Motion to Compel on the
grounds that it raises issues that were already decided by
Magistrate Judge Jelderks, it is untimely, and it seeks to compel
production of documents that Defendant has already produced and
documents that are not responsive to Plaintiff's discovery
requests or required by Local Rule 26-7.1
This Court considers the following factors when determining
whether an untimely motion to compel should be allowed:
1

Because the Court concludes Plaintiff’s request is
untimely and is not in the best interests of the parties or the
Court, the Court does not address Defendant’s other arguments.
5 - OPINION AND ORDER

(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.
Short v. Equifax Info. Servs. LLC, No. 3:14-CV-0471-YY, 2016 WL
6683563, at *3 (D. Or. Nov. 14, 2016).
I.

Length of Time since the Expiration of the Deadlines
As noted, on July 26, 2018, Magistrate Judge Jelderks issued

an Order directing the close of discovery by September 10, 2018,
which was 256 days before Plaintiff filed the current Motion to
Compel.

Thus, discovery closed two weeks before the parties

sought a stay of the case deadlines for purposes of settlement
negotiations, and the ensuing settlement conference was deemed
unsuccessful almost a month before Plaintiff filed his Motion to
Compel.
“[N]umerous courts within the Ninth Circuit have denied
discovery motions filed after the close of discovery as
untimely.”

Short, 2016 WL 6683563, at *3 (citations and

quotations omitted).

See, e.g., Krause v. Nevada Mut. Ins. Co.,

No. 2:12-CV-00342-JCM, 2014 WL 428675, at *2 (D. Nev. Feb. 4,
2014)(“It has, however, long been the policy in this District
that, absent unusual circumstances, discovery motions should be
filed before the scheduled date for filing dispositive
6 - OPINION AND ORDER

motions.”); Kizzee v. Walmart, Inc., No. CV10–0802–PHX–DGC, 2011
WL 3566881, at *1 (D. Ariz. Aug. 15, 2011)(denying the
plaintiff’s motion to compel filed three months after the close
of discovery and after motions for summary judgment had been
filed); Skinner v. Ryan, No. CV–09–2152–PHX–SMM (LOA), 2010 WL
4602935 (D. Ariz. Nov. 5, 2010)(denying as untimely the
defendants’ motion to compel that was filed a month after the
deadline for bringing discovery disputes to the court's
attention).
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.
II.

Length of Time Plaintiff Has Known about the Discovery
Plaintiff asserts he became aware of the documents that he

seeks when they were “mentioned in the depositions of defense
witnesses.”

Specifically, Plaintiff references the deposition

testimony of Madiha Chughtai, Laura Mumford, and Felicia Royce.
The record, however, reflects Plaintiff's counsel deposed those
witnesses in June 2018.

Plaintiff, therefore, knew or should

have known about the discovery that he seeks for more than 330
days before he filed his Motion to Compel.
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.

See, e.g., Krause, 2014 WL 428675, at *3

(denying motion to compel because the plaintiff knew about the
discovery 160 days before she filed the motion).
7 - OPINION AND ORDER

III. Discovery Deadline Extended
As noted, Magistrate Judge Jelderks extended the discovery
deadline in this matter twice and permitted Plaintiff to take two
depositions well after the close of discovery.
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.
IV.

Explanation for the Delay
Plaintiff does not offer any explanation for his failure to

file this Motion to Compel within the discovery period or before
Defendant filed its Motion for Summary Judgment.
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.
V.

Dispositive Motions Filed
On April 9, 2019, this Court held a Rule 16 conference and

scheduled a dispositive motion deadline of May 7, 2019.
Defendant filed a Motion for Summary Judgment on May 7, 2019.
Plaintiff did not file his Motion to Compel until May 24, 2019,
which is more than two weeks after both the dispositive-motion
deadline and the date on which Defendant filed its dispositive
motion.
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.
VI.

Age of the Case
This case is almost two years old and involves events that

8 - OPINION AND ORDER

occurred from October 2014 through February 2016.
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.
VII. Prejudice to Defendant and Disruption of the Court’s
Schedule
Defendant notes Plaintiff’s repeated extensions, disputes
about issues such as the propriety of this district court’s form
of stipulated protective order and document subpoenas, and
Plaintiff’s late deposition of Doolittle and Gelfand have
“significantly increased the time and cost associated with the
case.”

In addition, if the Court grants Plaintiff’s Motion it

will have to extend the dispositive-motions deadline in this
already two-year-old case.

The Court is charged in Federal Rule

of Civil Procedure 1 with promoting the “just, speedy, and
inexpensive determination of every action and proceeding.”
Plaintiff’s request would delay this matter further and increase
the costs to both parties.
The Court finds this factor favors denying Plaintiff’s
Motion to Compel.
IX.

Balance
As noted, all of the factors that the Court must

consider favor denying Plaintiff’s Motion.

In summary,

therefore, the Court concludes Plaintiff’s request is untimely
and denies Plaintiff’s Motion to Compel.

9 - OPINION AND ORDER

CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Motion (#61)
to Compel.
IT IS SO ORDERED.
DATED this 27th day of June, 2019.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

10 - OPINION AND ORDER