United States District Court, M.D. Alabama, Northern Division
M. BORDEN, UNITED STATES MAGISTRATE JUDGE.
consideration is Plaintiff's Motion to Reconsider Denial
of Motion to Compel and for Sanctions Pursuant to Rule 37 or
in the Alternative to Certify Discovery Question to the
Eleventh Circuit Court of Appeals. Doc. 116. For the reasons
stated below, the court finds that the motion is due to be
Jennifer Akridge filed the underlying motion to compel on
November 20, 2018, seeking the court's assistance in
obtaining written discovery from Defendant Alfa Mutual
Insurance Company (“Alfa”). See Doc.
114. Pursuant to the Uniform Scheduling Order entered in this
case, however, the discovery cutoff was July 21, 2018. Doc.
25 at 2. Following the completion of the discovery process,
Alfa filed its motion for summary judgment on August 20,
2018. Doc. 76. Akridge responded with a request for
additional discovery pursuant to Federal Rule of Civil
Procedure 56(d). Doc. 79.
request under Rule 56(d) must be supported by an appropriate
affidavit or declaration. Fed.R.Civ.P. 56(d). Akridge's
counsel did not submit an affidavit or declaration along with
the original motion, but he did submit a declaration on
August 28, 2018. Doc. 87-1. That declaration focused
exclusively on Akridge's request to take the deposition
of Scott Forest, an Executive Vice President of Alfa, and
made no reference to any written discovery materials alleged
to be essential to Akridge's opposition to summary
judgment. See generally Doc. 87-1. Upon review of
the declaration, the pending motions, and the related briefs,
the court granted Akridge's request for additional
discovery prior to a determination on summary judgment. Doc.
93. The court did so because Akridge had established that,
within the discovery cutoff, she formally requested
deposition testimony pursuant to Rule 30(b)(6) on certain
relevant subjects, and that Alfa did not prepare its
corporate representative to address these subjects during her
deposition. See Doc. 93 at 2- 4. Upon finding that
Akridge's delay in seeking this corporate representative
testimony was excusable, the court ordered Alfa to present
additional deposition testimony pursuant to Rule 30(b)(6).
Doc. 93 at 4-5.
another round of motions and related briefing (Docs. 94, 96,
97, 99 & 101- 04), on October 23, 2018 the court held a
hearing at which it received oral argument relating to the
scope of the discovery that would be allowed to Akridge and
other related issues. Following that hearing, the court
refined the Rule 30(b)(6) subjects on which Alfa would be
compelled to present testimony. See Doc. 113 at 2-5.
At no time did the court authorize Akridge to serve untimely
written discovery requests relating to the Rule 30(b)(6)
court ordered Akridge to depose Alfa's corporate
representative no later than December 7, 2018, but instead
Akridge filed the November 18, 2018 motion to compel. The
motion attached requests for production purportedly served on
Alfa on September 11, 2017, along with another set served
along with a Rule 30(b)(6) deposition notice on September 14,
2018. Docs. 114-1 & -2. The court denied Akridge's
motion, explaining that it
previously found that Akridge's Rule 56(d) motion
established that she could not present certain facts
essential to her opposition to the pending motion for summary
judgment and compelled Defendant to produce a Rule 30(b)(6)
corporate representative with knowledge of certain topics.
See Docs. 93 & 113. The court did not grant
leave for the parties to conduct any other discovery,
including written discovery, outside of the discovery
deadline, and Akridge has made no showing justifying her
delay in obtaining any discovery materials other than
deposition testimony relating to the Rule 30(b)(6) topics set
forth in Doc. 113.
Doc. 115. Akridge now asks the court to reconsider this order
or to certify her appeal to the Eleventh Circuit.
request for reconsideration is due to be denied because she
has made no effort to show that her delay in seeking the
instant written discovery was excusable. See Docs.
93 & 115. The attachment to Akridge's most recent
motion to compel confirms that she served discovery requests
on Alfa in September 2017. Even if Alfa failed to respond
appropriately to these requests (and Akridge has not
established that it did), Akridge had an obligation to raise
this issue with the court prior to the discovery cutoff in
July 2018. See, e.g., Smith v. Royal Caribbean Cruises,
Ltd., 302 F.R.D. 688, 694 (S.D. Fla. 2014) (stating that
“any motions to compel should have been filed in
advance of the discovery cutoff date in order to be deemed
timely”); Doc. 25 at 2. She did not do so, choosing
instead to serve an untimely set of requests for production
that overlaps with, but significantly expands upon, the scope
of the first requests. Compare Doc. 114-1,
with Doc. 114-2. She did so without seeking leave of
court to serve written discovery almost two months after the
discovery deadline. See Guidelines to Civil
Discovery Practice in the Middle District of Alabama §
I.G. (“Consequently, discovery requests should be
served more than thirty days prior to the cutoff date.
Untimely discovery requests are subject to objection on that
basis.”). And not only are the new requests expansive,
but they also reflect an attempt to inject patently
irrelevant issues into this litigation. See Doc.
114-2 at 3 (requesting “[all] records reflecting how
much money Alfa spent through its subsidiaries and affiliates
on political support of state senate, state house and federal
candidates from 2013-2017”). But the scope of
Akridge's new written discovery largely is beside the
Rule of Civil Procedure 16(b) compels the federal courts to
issue scheduling orders that may be modified only for good
cause. “To establish good cause, the party seeking the
extension must establish that the schedule could not be met
despite the party's diligence.” Ashmore v. Sec,
Dept. of Transp., 503 Fed.Appx. 683, 685 (11th Cir.
2013) (citing Oravec v. Sunny Isles Luxury Ventures,
L.C., 527 F.3d 1218, 1232 (11th Cir. 2008)). Barring
this showing, the Eleventh Circuit has “often held that
a district court has not abused its discretion by holding the
litigants to the clear terms of its scheduling order.”
Ashmore, 502 Fed.Appx. at 685.
result, Akridge bears the burden of proving that her delay
was excusable. Id. She made absolutely no effort to
do so in her most recent motion to compel or in the pending
motion to reconsider, both of which are long on accusations
and short on substance and detail--Akridge did not, for
example, bother to attach to the motions Alfa's response
to the original set of requests, explain how that response
was inappropriate, or discuss her efforts to remedy any
concerns with Alfa's response prior to the discovery
cutoff. See Id. (citing Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
(1993), and listing four ...