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Betts v. Work Zone Traffic Control, Inc.

United States District Court, D. Colorado

August 9, 2017

DAVID BETTS, Plaintiff,



         This matter is before the Court on Plaintiff David Betts's Objection (Doc. # 50) to an Order issued by Magistrate Judge Michael J. Watanabe on June 28, 2017 (Doc. # 49), wherein Magistrate Judge Watanabe denied Plaintiff's Motion to Compel Defendant Work Zone Traffic Control Inc. to provide Plaintiff with various GPS records (Doc. # 35). For the following reasons, this Court overrules Plaintiff's Objection and affirms Magistrate Judge Watanabe's Order.

         I. BACKGROUND

         Magistrate Judge Watanabe's Order (Doc. # 49) provides an extensive recitation of the applicable factual and procedural background of this case. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Additional factual background will be reiterated only to the extent necessary to address Plaintiff's Objection.


         When a magistrate judge issues an order on a nondispositive pretrial matter, “[a] party may serve and file objections to the order within 14 days after being served with a copy. . . . The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a). Under the clearly erroneous standard, “the reviewing court [must] affirm unless it ‘on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006).

         III. ANALYSIS

         A. TIMELINESS

         Plaintiff first objects to Magistrate Judge Watanabe's conclusion that Plaintiff's Motion to Compel was untimely filed. The Court overrules that objection.

         1. Law

         Although the Federal Rules of Civil Procedure to not provide a strict deadline for filing a motion to compel, most courts look to the discovery deadline date in considering whether a motion to compel is timely. See Craig-Wood v. Time Warner N.Y. Cable LLC, 549 Fed.Appx. 505 (6th Cir. 2014) (finding district court did not abuse discretion in denying motion to compel discovery of certain compact discs when employee did not seek their production prior to discovery deadline and CDs were identified in documents in employee's possession); Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 397-98 (N.D. Tex. 2006) (collecting cases) (untimely when filed two weeks after discovery deadline, even though filed on day of scheduling order deadline for all motions); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (“Appellants waited more than one month after the second extended discovery deadline had elapsed to properly request an order from the district court”); Suntrust Bank v. Blue Water Fiber, L.P., 210 F.R.D. 196, 200-01 (E.D. Mich. 2002) (filed after the close of discovery even though the moving party had all the information it needed to file the discovery motion earlier). Courts also look to the following factors when assessing timeliness: (1) the length of time since the discovery deadline expired; (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 in filing the motion to compel; (5) whether dispositive motions have been scheduled or filed; (6) the age of the case; (7) any prejudice to the party from whom the discovery is being sought; and (8) any disruption of the court's schedule. See Days Inn Worldwide, 237 F.R.D. at 398.

         2. Analysis

         A Scheduling Order issued on September 29, 2016. (Doc. #19.) That Order set February 21, 2017, as the deadline for discovery requests and March 27, 2017, as the discovery cut-off date. (Id.) On October 28, 2016, Plaintiff served written discovery on Defendant, including a request for GPS records. On January 10, 2017, Defendant responded to the written discovery, objecting to the request for GPS records as disproportionate to the needs of the case and as otherwise available from a third party.

         On March 2, 2017, Plaintiff filed a motion to compel Defendant to produce timesheets and payroll records. Plaintiff, aware of Defendant's objection from January 10, 2017, could have requested Defendant also produce GPS records, but Plaintiff did not. On April 18, 2017, the Court granted Plaintiff's motion and compelled Defendant to produce timesheets and payroll for six employees by May 5, 2017. The Court also extended discovery to May 26, 2017, for the limited purposes of (1) allowing Defendant to produce the time sheets and payroll records and (2) allowing Plaintiff the opportunity to depose up to nine individuals. (Doc. # 32.) Defendant produced the time sheets and payroll records on May 5, ...

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