United States District Court, E.D. Missouri, Eastern Division
JESSE L. MORGAN, Plaintiff,
THE VOGLER LAW FIRM, P.C., et al., Defendants,
MEMORANDUM & ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
brings this lawsuit against his former landlord Ronald K.
Reynolds and law firm Vogler Law Firm, and others, that were
involved in plaintiff's eviction and who filed a
collection lawsuit against plaintiff. Remaining counts in
this case are Count I for Violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et
seq. (“FDCPA”), against the Vogler Law Firm,
Vincent D. Vogler, and Vincent V. Vogler (“Vogler
defendants”), and Count II for Violations of the
Missouri Merchandising Practices Act, § 407.010 RSMo
(“MMPA”) against Ronald Reynolds.
motions are currently before the Court.
Motions to Compel Against Defendants (#44, #45)
Case Management Order in this case stated that discovery was
to be completed by February 17, 2017. Plaintiff served each
set of defendants with interrogatory requests, requests for
production, and requests for admissions on January 18, 2017;
responses to those requests were due on or before the
February 17 close-of- discovery deadline. Although the
defendants responded to the plaintiff's requests for
admission, neither set of defendants responded to either
plaintiff's interrogatories or requests for production by
the February 17, 2017 deadline. Plaintiff's counsel
attempted to confer with defense counsel regarding the
missing discovery responses, but plaintiff's counsel has
not received an answer. Similarly, no defendant has responded
to plaintiff's motion to compel. The time for doing so
has passed. Defendants shall respond to plaintiff's
outstanding discovery within seven days of this Order, and
they shall pay plaintiff's counsel's costs and fees
required to file the motions. Failure to respond to the
discovery requests in compliance with this Order will result
in further sanctions.
Motions for Leave to File Answer Out of Time by Defendants
neither set of defendants filed a response to plaintiff's
motions to compel, they did file motions for leave to file
their Answers out of time just one day and two days after
plaintiff filed the motions to compel. This Court denied in
part and granted in part defendants' motions to dismiss
plaintiff's complaint on July 22, 2016 (#38). Despite
having participated in scheduling conferences and discovery
since that time, neither set of defendants had filed an
Answer to the counts remaining in plaintiff's Complaint.
Court may extend the time for filing an Answer if the moving
party demonstrates “good cause” for the
additional time. Fed.R.Civ.P. 6(b). If the deadline for
filing an Answer has already expired, however, the moving
party must prove that the failure to file a timely answer was
the result of “excusable neglect.” Id.
at 6(b)(2). That showing must be made “with
particularity.” Fed.R.Civ.P. 7(b)(1)(B). The Supreme
Court held that whether a party's failure to meet a
deadline is excusable is an equitable determination,
“taking account of all the relevant circumstances
surrounding the party's omission.” Pioneer Inv.
Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S.
380, 395 (1993). The Court considers “(1) the danger of
prejudice to the non-moving party; (2) the potential impact
on the proceedings; (3) the reason for the delay, including
whether it was within the party's control; and (4)
whether the party acted in good faith.” Maritz,
Inc. v. C/Base, Inc., 4:06CV761 CAS, 2007 WL 2302511, at
*2 (E.D. Mo. Aug. 7, 2007) (citing Pioneer, 507 U.S.
at 395; Sugarbaker v. SSM Health Care, 187 F.3d 853,
855-56 (8th Cir. 1999)).
plaintiff contends he will be prejudiced if the defendants
are allowed to file their answers now, six months late and
after the close of discovery. Plaintiff states that all of
his decisions during discovery were based on the
understanding that defendants had admitted the factual
allegations in his Complaint, other than those allegations
pertaining to damages. Plaintiff believed that defendants had
admitted those allegations because Federal Rule of Civil
Procedure 8(b)(6) states that “[a]n allegation ---
other than one relating to the amount of damages --- is
admitted if a responsive pleading is required and the
allegation is not denied.” Plaintiff says that it
reasonably believed that defendants were contesting the issue
of damages but not liability in the wake of this Court's
motion to dismiss Memorandum & Order, which addressed
matters such as the statute of limitations for
defendants' underlying lawsuit against plaintiff. In
addition, defendants did not file disclosures under Federal
Rule of Civil Procedure 26, and Rule 37 prohibits a party
from relying on undisclosed witnesses or documents to support
its defenses. See Fed. R. Civ. P. 26(a) and 37(c).
(Notably, defendant Reynolds filed his Rule 26 disclosures
late; the Vogler defendants never filed disclosures at all.)
Further, plaintiff's counsel emailed defense counsel one
month after defendants' responsive pleading deadline has
passed outlining the fact that defendants' liability no
longer seemed to be at issue and offering to resolve the
matter through settlement. Defendants did not respond to
plaintiff's settlement offer or otherwise challenge
counsel's suggestion that liability was not as issue.
during discovery, plaintiff used his entire
“allotment” of interrogatories and otherwise
prepared discovery requests and requests for admission
focused solely on damages. Furthermore, dispositive motions
are due April 21, 2017, and plaintiff has expended
significant time preparing summary judgment motion based on
the defendants' admissions. Plaintiff would thus be
prejudiced if the defendants could now change their stance
and deny liability.
the potential impact of allowing defendants to file their
Answers at this late stage is substantial. As indicated
above, discovery has closed, and, in part because the Court
allowed the parties time to fully brief this matter,
dispositive motions are imminent. This case is already almost
two years old. Allowing defendants to Answer now would
necessitate a new Case Management Order and a new trial date.
the defendants provided no reason for the delay at all.
Plaintiff's counsel even e-mailed counsel for both sets
of defendants on September 19, 2016, one month after the
Answer deadline passed, suggesting settlement and noting
“there remains little question as to the issue of
liability” (#49-1). Defendants' failure to respond
to that e-mail (five months before the instant motions were
filed) and all other circumstances point to the fact that the
failure to Answer was a conscious choice by defendants. Even
after plaintiff filed a detailed briefing articulating all
the reasons why this Court should deny the defendants'
attempt to belatedly file Answers, defendants chose not to
file a reply.
in light of the above matters, as plaintiff points out,
whether defendants are operating in good faith is open to
question. Their litigation tactics are puzzling at best. The
history of missed deadlines and ignored emails would appear
more open to interpretation and excuse but for the fact ...