United States District Court, D. Kansas
LYNNETTE MAYHEW, Individually and on behalf of all others similarly situated, Plaintiff,
ANGMAR MEDICAL HOLDINGS, INC., d/b/a ANGELS CARE HOME HEALTH, Defendant.
MEMORANDUM & ORDER
KENNETH G. GALE U.S. MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion to Compel. (Doc.
16.) As discussed below, Plaintiff's motion is
brings this action for allegedly unpaid and improper wages
pursuant to the Fair Labor Standards Act, 29 U.S.C. §
201, et seq. Defendant generally denies
Initial Scheduling Order in this case (Doc. 11) states:
Any motion to compel discovery in compliance with D. Kan.
Rules 7.1 and 37.2 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 time for filing
such a motion is extended for good cause shown.
Otherwise, the objection to the default,
response, answer, or objection is waived.
See D. Kan. Rule 37.1(b).
(Doc. 11, at 9 (emphasis added).) The underlying discovery
responses were served on December 24, 2018 (Requests for
Admission), and December 31, 2018 (Interrogatories and
Requests for Production). (Cite.) “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
to D. Kan. Rule 37.1(b), any resulting discovery motions
should have been filed on or before January 23, 2019, and
January 30, 2019. Plaintiff's motion to compel, however,
was not filed until February 21, 2019 - 4 weeks after her
motion to compel regarding Requests for Admissions would have
been due and 3 weeks after the deadline to file any motion
regarding the Interrogatories and Requests for Production.
(Doc. 16.) Plaintiff did not request an extension of the
deadline to file a discovery motion.
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). To the
contrary, she does not even address the issue. Instead,
Plaintiff's counsel acknowledges that the parties were at
an “impasse” regarding the discovery disputes as
of January 23, 2019. (Doc. 16, at 4.) While this may have made
it difficult for Plaintiff to file a timely motion to compel,
she would not have been inhibited from filing a timely motion
to extend the time to do so. She simply chose not to. This
does not constitute good cause.
stated, Plaintiff argues that “the Court has discretion
to consider and rule on a Motion to Compel filed after that
timeframe for good cause under an excusable neglect
standard.” (Doc. 20, at 2 (citing D. Kan. R. 37.1,
Digital Ally, Inc. v. Util. Assocs., Inc., No.
14-2262-CM-GEB, 2016 WL 1535979, at *2 (D. Kan. Apr. 15,
2016).) Plaintiff's counsel contends their
“continued” communication with defense counsel,
coupled with giving Defendant “notice of a forthcoming
Motion to Compel” within the deadline prescribed by D.
Kan. R. 37.1 establishes good cause under the excusable
Court is not persuaded. Plaintiff “was not free to
merely ignore the deadline, ignore the Federal and Local
Rules, and file [her] discovery [motion] when it was
convenient for [her].” Cf. Jones v. Easter,
No. 17-3089-EFM-KGG, 2019 WL 398939, at *3 (D. Kan. Jan. 31,
2019) (reaching this conclusion as to a party who failed to
file discovery responses within the 30-day deadline of
Fed.R.Civ.P. and chose not to file a timely motion requesting
an extension to do so); Escalante v. Lifepoint
Hosp., No. 17-2035-JWL-KGG, 2019 WL 1753959, at *2 (D.
Kan. April 19, 2019) (entering a protective order prohibiting
discovery served four weeks after the time for it to be
served so as to be answered in a timely manner where
plaintiffs failed to move to extend this deadline, failed to
request permission from the Court to conduct the discovery
out of time, and provided no valid justification for the
failure to do so).
in the present matter, “the court cannot conclude
through this course of events plaintiff was somehow misled by
defendant that [supplemental discovery responses] would be
forthcoming.” Kankam v. University of Kansas Hosp.
Auth., No. 07-2554-EFM, 2009 WL 211946, at *4 (D. Kan.
Jan. 26, 2009). As such, Plaintiff has not established good
cause or excusable neglect for failing to file a timely
motion to compel or, at a minimum, to file a timely request
for an extension of the deadline to do so. Plaintiff's
Motion to Compel (Doc. 16) is, thus, DENIED.
IS THEREFORE ORDERED that Plaintiff's Motion to
Compel (Doc. 16) is DENIED as untimely.