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Nkemakolam v. St. John's Military School

United States District Court, Tenth Circuit

October 7, 2013

YOLANDA NKEMAKOLAM, as Parent and Next Friend of K.N., et al., Plaintiffs,
v.
ST. JOHN'S MILITARY SCHOOL, Defendant.

ORDER ON MOTION TO COMPEL

KENNETH G. GALE, Magistrate Judge.

Now before the Court is Plaintiff's Second Motion to Compel (Doc. 244). Having reviewed the submissions of the parties and other filings in this case, the Court DENIES Plaintiff's motion.

BACKGROUND

Defendant St. John's Military School is a private boarding school for minors. In this action, a number of former students claim damages for personal injuries suffered as a result of alleged physical and mental abuse by other students. Plaintiffs claim that in some instances the acts were performed at the direction or under the observation of school employees. Plaintiffs allege negligent supervision, intentional failure to supervise, intentional infliction of emotional distress or outrage, negligent infliction of emotional distress, breach of fiduciary duty (alleging failure to discharge loco parentis responsibilities), and civil conspiracy of assault and battery. The allegations of abuse are generally and specifically denied by Defendant.

DISCUSSION

A. Requests for Production Nos. 57 and 63.

Plaintiffs seek an Order compelling Defendant to provide responses for the following discovery requests from Plaintiff's Third Set of Requests for Production: Request No. 57 regarding cadet files for certain listed students and Request No. 63, seeking all versions of Defendant's website since 2009. Defendant's responses were filed on March 15, 2013. (Doc. 167.) The present motion was not filed until almost six months later. (Doc. 244.)

As a procedural matter, Defendant argues that Plaintiffs failed to file this motion to compel in a timely manner, thus waiving the right to contest Defendant responses and objections to Plaintiff's discovery requests. ( See Doc. 261, sealed, at 1-5.) According to the District of Kansas local rules,

[a]ny motion to compel discovery... must be filed and served within 30 days of the default or service of the response, answer, or objection that is the subject of the motion, unless the court extends the time for filing such motion for good cause. Otherwise, the objection to the default, response, answer, or objection is waived.

D. Kan. Rule 37.1(b) (emphasis added). This language was also included in the Scheduling Order in this case. (Doc. 57, at 4-5.) "D. Kan. Rule 37.1(b) generally reflects that the triggering event is service of the response that is the subject of the motion.'" Cotton v. Costco Wholesale Corp., No. 12-2731-JW, 2013 WL 3819974, at *1 (D. Kan. July 24, 2013) (citing Firestone v. Hawker Beechcraft Int'l Svs. Co., No. 10-1404-JWL, 2012 WL 359877, at * 4 (D.Kan. Feb. 2, 2012) (internal citation omitted)).

As stated above, Defendant's responses to Plaintiff's Third Set of Document Requests were served on March 15, 2013. (Doc. 167.) Pursuant to D. Kan. Rule 37.1(b), Plaintiff's time to file the relevant motion to compel ran on April 15, 2012 - some five months prior to the filing of the present motion. Thus, the motion was not timely filed in regard to the Requests for Production 57 and 63.

Plaintiffs' motion does not provide the Court with a basis for finding "good cause" to extend the time to file the motion, pursuant to D. Kan. Rule 37.1(b). In a footnote, Plaintiffs contend that

[a]t the outset of discovery in this matter, the parties agreed to an open ended extension for filing Motions to Compel on discovery issues. This is evidenced in multiple communications and filings. First, this agreement was memorialized in email correspondence between counsel. Attached as Exhibit A, is the communication. In it, all counsel was included and an agreement was struck that the 30 day deadline for motions to compel was extended. The parties never agreed upon a specific length of the extension so all parties have been operating under the understanding that local Rule 37.1's 30 day deadline is not applicable through agreement. This is further supported by language in Plaintiffs' first Motion to Compel (Doc. # 96) where Plaintiffs explained in footnote #1 (pg. 4) that "The ...

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