United States District Court, D. Colorado
ORDER AFFIRMING MAGISTRATE JUDGE WATANABE'S ORDER
DENYING PLAINTIFF'S MOTION TO COMPEL
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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.
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.
STANDARD OF REVIEW
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).
first objects to Magistrate Judge Watanabe's conclusion
that Plaintiff's Motion to Compel was untimely filed. The
Court overrules that objection.
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.
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.
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, ...