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Morgan v. Vogler Law Firm, P.C.

United States District Court, E.D. Missouri, Eastern Division

April 17, 2017

JESSE L. MORGAN, Plaintiff,
v.
THE VOGLER LAW FIRM, P.C., et al., Defendants,

          MEMORANDUM & ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Several motions are currently before the Court.

         I. Motions to Compel Against Defendants (#44, #45)

         The 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.

         II. Motions for Leave to File Answer Out of Time by Defendants (#46, #47)

         Although 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.

         The 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)).

         First, 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.

         Thus, 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.

         Second, 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.

         Third, 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.

         Fourth, 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 ...


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