Kelly v. Equifax Inc

Filing 29

ORDER denying 19 Motion to Compel as Moot; granting 20 Motion for Extension of Time to File Response/Reply ; granting 20 Motion to Withdraw ; denying 21 Motion for Extension of Time to Amend ; denying 21 Motion to Amend/Correct as set out. Signed by Honorable Mary G Lewis on 11/7/13.(alew, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Denise Crowe Kelly,
Plaintiff,
vs.
Equifax, Inc.,
Defendant.
______________________________

) Civil Action No.:8:12-cv-03095-MGL
)
)
)
)
ORDER AND OPINION
)
)
)
)
)

Before this court is Defendant Equifax Inc.’s Motion to Compel Discovery
Responses (ECF No. 19), Plaintiff’s Motion for Extension of Time to Respond to Requests
for Admission or in the Alternative to Withdraw Admissions (ECF No. 20), and Plaintiff’s
Motion to Extend Time for Motion to Amend Complaint and Motion to Amend Complaint
to Correctly Identify the Defendant. (ECF No. 21.) Plaintiff Denise Crowe Kelly (“Plaintiff”)
filed a response in opposition to Defendant’s Motion to Compel Discovery Responses (ECF
No. 22) indicating that responses have now been served and maintaining that an award
of sanctions is not appropriate in this case.

Defendant Equifax Inc. (“Defendant”)

responded in opposition to Plaintiff’s motions (ECF No. 23) and filed a reply in support of
its Motion to Compel Discovery Responses and efforts to recover its reasonable expenses
and attorney’s fees incurred in bringing the motion. (ECF No. 24.) Having considered the
motions, responses and the record in this case, the court denies Defendant’s Motion to
Compel as moot, grants Plaintiff’s Motion for Extension of Time to Respond to Requests
for Admission or in the Alternative to Withdraw Admissions, and denies without prejudice
Plaintiff's Motion to Extend Time for Motion to Amend Complaint and Motion to Amend
Complaint to Correctly Identify the Defendant.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff brought this action on October 25, 2012, alleging that Defendant violated
the Fair Credit Reporting Act,15 U.S.C. § 1681, et seq. (“FCRA”) in the handling of her
credit file. (ECF No. 1.) Defendant filed its motion to compel discovery responses on June
21, 2013, pursuant to Rule 37 of the Federal Rules of Civil Procedure and Rule 37.01 of
the Local Rules of this District. (ECF No. 19.) In that motion, Defendant asserted that it
served discovery requests, including requests for admission, to Plaintiff on April 25, 2013.
(ECF No. 19 at 1.) Defendant demanded responses to Defendant’s interrogatories and
requests for production of documents by June 12, 2013, but did not receive responses.
Thus, on June 21, 2013, Defendant filed its motion to compel1 and purports to have done
so within twenty-one days after the discovery responses were due as required by Local
Rule 37.01(A). (ECF No. 19 at 2.) Defendant asks the court to deem all of Plaintiff’s
objections as waived and to instruct Plaintiff to provide full and complete responses without
objections and also seeks its reasonable attorneys’ fees and expenses associated with
preparing the motion as provided by Federal Rule of Civil Procedure 37(a)(5)(A). Plaintiff
filed a response on July 11, 2013, indicating that he served responses to the
interrogatories and requests for production of documents on July 1, 2013. (ECF No. 22-1.)
Defendant filed its reply in support of its motion on July 22, 2013, reiterating its request for
reasonable expenses incurred in making the motion because Plaintiff did not provide the
discovery until after the motion to compel was filed. (ECF No. 24 at 6.)
Additionally, on June 28, 2013, Plaintiff filed a motion for extension of time to
1

As of the date of Defendant’s motion, Plaintiff had yet to respond to the
discovery requests.
-2-

respond to requests for admission or in the alternative, to withdraw admissions pursuant
to Rule 36(b) of the Federal Rules of Civil Procedure, based on counsel’s “unintentional”
failure to timely respond to the requests due to various personal and work demands. (ECF
No. 20.) Finally, Plaintiff seeks an extension of the deadline to file motions to amend
pleadings and further moves for leave to amend her complaint to correctly identify the
defendant in this case as Equifax Information Services, LLC. (ECF No. 21.) Defendant
opposes both of Plaintiff’s requests maintaining that: 1) Plaintiff continues to disregard
deadlines imposed by the court and applicable rules; 2) Plaintiff has been on notice that
Defendant was neither a consumer reporting agency subject to the FCRA nor a proper
party in this case; and 3) Plaintiff has not cited or satisfied the test for withdrawing
admissions nor has Plaintiff made an effort to demonstrate good cause to modify the
scheduling order. (ECF No. 23.)
ANALYSIS /DISCUSSION
I.

Defendant’s Motion to Compel
A motion to compel must be timely filed. Pursuant to Local Rule 37.01(A), motions

to compel discovery must be filed within twenty-one days after receipt of the discovery
response to which the motion to compel is directed, or where no response has been
received, within twenty-one days after the response was due. If counsel for the parties are
actively engaged in attempts to resolve the discovery dispute, they can agree to extend the
time to comply with the discovery requests to be confirmed in writing and in a manner
otherwise consistent with the rule. The agreed upon extension automatically extends the
deadline for the motion to compel by an equal amount of time. L.R. Civ. P. 37.01(A). Rule

-3-

33(b)(2) of the Federal Rules of Civil Procedure provides that a responding party must
serve its answers and any objections to interrogatories within 30 days of being served with
the interrogatories unless a shorter or longer time is stipulated to by the parties or ordered
by the court. Rule 34 (b)(2) sets forth a similar 30 day period as to requests for production
of documents. The court notes, however, that the Federal Rules would add three days to
the time a party has to respond. Rule 6(d) states that “[w]hen a party may or must act
within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or
(F), 3 days are added after the period would otherwise expire under Rule 6(a).” Fed. R.
Civ. P. 6(d). As relevant here, the specified provisions of Rule 5 generally permit serving
a document by mail, by electronic means, or by any other means authorized by the
recipient. See Fed.R.Civ.P. 5(b)(2) (C), (E), (F). Accordingly, when a party makes service
by mail, fax, e-mail, etc., three days are added to the time the served party has to respond.
Defendant’s motion indicates that discovery requests were served by email and by U.S.
mail on April 25, 2013. (ECF Nos. 19-1, 19-2 & 19-3.) Therefore, Defendant had 33 days
after service to respond—in this case until May 28, 2013.2
Plaintiff failed to respond to the discovery requests by the May 28, 2013 due date
thus prompting Defendant’s correspondence to Plaintiff’s counsel of June 7, 2013,
requesting that Plaintiff respond to the interrogatories and requests for production (noting
that the requests for admissions were deemed admitted) by June 12, 2013, so that
Defendant would not be forced to file a motion to compel. (ECF No. 19-3.) Plaintiff then
2

Defendant Equifax appears to have calculated the due date for Plaintiff’s
discovery responses similarly as indicated in both Defendant’s response (ECF No. 24 at
3-4) and in Defendant’s letter to Plaintiff requesting a response to the discovery
requests provided as an exhibit in support of its Motion to Compel. (ECF No. 19-3.)
-4-

indicated by e-mail correspondence that counsel would attempt to respond to the discovery
requests by June 17, 2013. (ECF No. 19-4.) Plaintiff did not serve discovery requests by
June 17, 2013. Based on the briefing in this case, it does not appear that the parties ever
agreed upon an extension for Plaintiff to serve discovery responses. Defendant filed its
motion to compel on June 21, 2013, and contends that it was timely filed on the last
possible day allowed by Local Rule 37.01(A). (ECF No. 24 at 4.) The court respectfully
disagrees. Apparently, Defendant allotted itself an extra three days—i.e., until June 21,
2013—to file the Motion to Compel. But, Rule 6(d) and its three-day extension apply to
time periods “[w]hen a party may or must act within a specified time after service.”
Fed.R.Civ.P. 6(d) (emphasis added); see, e.g., Fed.R.Civ.P. 12(a)(1)(A)(I) (requiring a
defendant to serve an answer “within 21 days after being served with the summons and
complaint”). Local Rule 37.01—which governs motions to compel discovery—requires that
motions to compel discovery must be filed within twenty-one days after the response was
due where no response was received. Here, where service of the discovery responses is
simply not at issue, Rule 6(d) cannot be said to apply and there is no basis to extend the
twenty-one day time limit for filing a motion to compel. Calculating twenty-one days after
May 28, 2013, would mean the Motion to Compel was due to be filed with the court on
June 18, 2013.
The court need not reach the merits of Defendant’s motion to compel because it
was untimely filed. See Spencer Med. Assocs. v. Comm’r, 155 F.3d 268, 273 (4th
Cir.1998) (“At the outset we note that the mere untimeliness of SMA’s motion supports the
court’s denial.”); see, e.g., Hitter v. Ozmint, No. 2:06–1502–TLW–RSC, 2007 WL 680733,

-5-

at *2 n. 2 (D.S.C. March 1, 2007). Further, it appears that Defendant’s requests, with the
exception of its request for attorney’s fees and costs associated with filing the motion, are
moot because Plaintiff eventually filed answers to the interrogatories and requests for
production without objection. Defendant has not moved to seek further responses to any
of the discovery requests or questioned the sufficiency of the responses Accordingly,
Defendant’s Motion to Compel is denied as moot.
Under Federal Rule of Civil Procedure 37(a)(5), the court must not award
reasonable expenses to the prevailing party when a motion to dismiss is denied if the other
party’s position was substantially justified or other circumstances make an award of
expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). A legal position is “substantially justified” if
there is a “genuine dispute” as to proper resolution or if “a reasonable person could think
it correct, that is, if it has a reasonable basis in law and fact.” Decision Insights, Inc. v.
Sentia Group, Inc., 311 Fed. App’x 586, 599 (4th Cir. 2009) (unpublished opinion)(citing
Pierce v. Underwood, 487 U.S. 552, 565–66 n. 2 (1988)). Although the court has denied
Defendant’s motion as moot, a reasonable person could think the motion had a reasonable
basis in law and fact. Therefore, the court declines to grant fees and expenses to either
party associated with the motion at issue.
II.

Plaintiff’s Motion for Extension of Time to Respond to Requests for Admission
or in the Alternative to Withdraw Admissions
Plaintiff also moves pursuant to Rule 36(b) for permission to withdraw his

admissions based on Plaintiff’s failure to respond or in the alternative, asks the court for
a longer period of time to respond pursuant to Rule 36(a)(3). (ECF No. 20.) Plaintiff’s
counsel indicates that the failure to respond was unintentional and the result of counsel’s
-6-

busy work and personal schedule. Federal Rule of Civil Procedure 36 governs requests
for admissions. It provides that “[a] matter is admitted unless, within 30 days after being
served, the party to whom the request is directed serves on the requesting party a written
answer or objection addressed to the matter and signed by the party or its attorney.”
Fed.R.Civ.P. 36(a)(3). Under Rule 36(a)(3), the court may allow additional time to respond,
or under Rule 36(b) the court may, on motion, “permit[ ] the admission to be withdrawn or
amended.”
Requests by parties for either leave to withdraw admissions or for an extension of
time to respond to requests for admission are generally analyzed under the framework
outlined in Fed.R.Civ.P. 36(b) under which “the court may permit withdrawal or amendment
if it would promote presentation on the merits of the action, and if the court is not
persuaded that it would prejudice the requesting party in maintaining or defending the
action on the merits.” See J & J Sports Prods., Inc. v. Mumford, No. DKC 10-2967, 2012
WL 1409588, *3 (D. Md. Apr. 20, 2012). “It is, however, within the court’s discretion to
allow untimely answers to requests for admissions, when such an amendment of the
admission will not prejudice the other party.” Donovan v. Porter, 584 F.Supp. 202, 208
(D.Md. 1984). Allowing untimely answers in this case is appropriate because doing so
would facilitate the resolution of the case on the merits and at the time the motion was
filed, the parties were still engaged in the discovery process necessary to achieve case
resolution. See Fed.R.Civ.P. 36(b). Defendant’s requests for admissions to Plaintiff relate
to the central issues in dispute in this case as it is currently postured and allowing Plaintiff’s
purported admissions to stand would thwart consideration of the case’s merits. (ECF No.
20-1.)

Further, Plaintiff asserts that the failure to respond was inadvertent and

-7-

unintentional.
Additionally, the court is not persuaded that Defendant would be prejudiced by the
withdrawal of the admissions and defending this action on the merits. For purposes of
Rule 36(b), prejudice results where a party faces difficulty in proving its case because of
a “sudden need to obtain evidence required to prove the matter that had been admitted.”
Metpath, Inc. v. Modern Medicine, 934 F.2d 319 (4th Cir. 1991)(unpublished opinion); see
also Brook Village North Assocs. v. General Electric Co., 686 F.2d 66, 70 (1st Cir.1982)
(“The prejudice contemplated by the Rule is not simply that the party who initially obtained
the admission will now have to convince the fact finder of its truth. Rather, it relates to the
difficulty a party may face in proving its case, e.g., caused by the unavailability of key
witnesses, because of the sudden need to obtain evidence with respect to the questions
previously answered by the admissions.”) In this case, although Defendant is reasonably
concerned about “Plaintiff’s past performance in discovery,” this concern does not rise to
level needed create the sort of prejudice contemplated by the rule. (ECF No. 23 at 13.)
Thus, the court concludes that Plaintiff’s untimely consideration of Defendant’s
Requests for Admission was unintentional, and within its discretion, the court allows
Plaintiff to withdraw her late admissions and to serve the late response with all due speed.
The court believes that this resolution would promote the presentation of the merits of this
action and would result in no prejudice to Defendant.
III.

Plaintiff's Motion to Extend Time for Motion to Amend Complaint and Motion
to Amend Complaint to Correctly Identify the Defendant
Finally, Plaintiff asks this court to extend the deadline for filing amended pleadings

in order to allow Plaintiff to move to amend her complaint. (ECF No. 21.) In this same
motion, Plaintiff also moves, pursuant to Rule 15(a)(2), for leave to amend her complaint
-8-

to correctly identify the defendant as she now understands that the appropriate entity for
suit in this matter is Equifax Information Services, LLC, not Equifax, Inc., as has been
previously alleged. (ECF No. 21 at 1.) Plaintiff acknowledges that the June 5, 2013,
deadline set by the governing scheduling order in this case expired prior to the filing of the
instant motion to amend which was filed nearly a month later on July 1, 2013. Plaintiff
contends that allowing the amendments would not prejudice Defendant or affect any
unexpired scheduling order deadlines.
Ordinarily, “the court should freely give leave [to amend] when justice so requires.”
Fed.R.Civ.P. 15(a); Davis v. Va. Commonwealth Univ., 180 F.3d 626, 628 (4th Cir.1999)
(noting that the disposition to amend is within the sound discretion of the district court). A
district court may deny a party’s motion to amend if allowing the amendment would be
futile. See In re PEC Solutions, Inc. Sec. Litig., 418 F.3d 379, 391 (4th Cir. 2005) (“Leave
to amend need not be given when amendment would be futile.”). Here, however, Plaintiff
seeks to amend the complaint after the deadline to do so provided by the scheduling order
has passed. (ECF No. 17.) “[A]fter the deadlines provided by a scheduling order have
passed, the good cause standard [of Rule 16] must be satisfied to justify leave to amend
the pleadings.” Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). Rule
16(b) provides, in pertinent part, “[a] schedule may be modified only for good cause and
with the judge’s consent.” Fed.R.Civ.P. 16(b)(4). Normally, “[g]ood cause under Rule 16(b)
exists when evidence supporting the proposed amendment would not have been
discovered in the exercise of reasonable diligence until after the amendment deadline had
passed.” Interstate Narrow Fabrics, Inc. v. Century USA, Inc., 218 F.R.D. 455, 460
(M.D.N.C.2003) (citation omitted); see also Dilmar Oil Co. v. Federated Mut. Ins. Co., 986

-9-

F. Supp. 959, 980 (D.S.C. 1997)(“Rule 16(b)’s ‘good cause’ standard is much different than
the more lenient standard contained in Rule 15(a). Rule 16(b) does not focus on the bad
faith of the movant, or the prejudice to the opposing party. Rather, it focuses on the
diligence of the party seeking leave to modify the scheduling order to permit the proposed
amendment.”) Plaintiff simply has not addressed any of these important points in her brief
motion (or explained why she did not move to “correctly identify the defendant” in a timely
fashion), therefore the court concludes that Plaintiff has failed to show sufficient good
cause to allow an amendment of the pleadings after the deadline in the scheduling order.
Accordingly, the motion to amend is denied without prejudice.
CONCLUSION
For the reasons set forth above, the court denies Defendant’s Motion to Compel as
Moot (ECF No. 19), grants Plaintiff’s Motion for Extension of Time to Respond to Requests
for Admission or in the Alternative to Withdraw Admissions (ECF No. 20), and denies
Plaintiff’s Motion to Extend Time for Motion to Amend Complaint and Motion to Amend
Complaint to Correctly Identify the Defendant (ECF No. 21) without prejudice.
IT IS SO ORDERED.
s/Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
November 7, 2013

-10-