United States District Court, E.D. Missouri, Eastern Division
MARGUERITE EZELL and SHERILYN SILVER, on behalf of themselves and all others similarly situated, Plaintiffs,
ACOSTA, INC., Defendant.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' Cross-Motion to
Compel Responses to Plaintiffs Discovery Demands (ECF No.
58). This case was originally filed on June 16, 2016.
Plaintiffs filed their Amended Class Action Complaint on
August 22, 2016 and a Second Amended Class Action Complaint
on September 1, 2016 as a collective and class action
alleging that Defendant Acosta, Inc. ("Acosta") has
engaged in an unlawful pattern and practice of failing to pay
minimum wage and overtime pay as required by the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201,
et seq., and in violation of Missouri Common Law and
Public Policy. (Second Am. Compl. ¶ 2, ECF No. 19).
September 22, 2016, United States District Judge Carol E.
Jackson (retired) issued a Case Management Order
("CMO") pertaining to Phase I of this collective
action. The CMO states that "[m]otions seeking to extend
a deadline set forth in this Order or to otherwise modify the
schedule set below . . . will not be granted absent a showing
of good cause." (ECF No. 26) Further, with regard to
discovery disputes, Judge Jackson ordered, "[a]ll
discovery disputes, regardless of how submitted, must be
presented not more than 15 days following the event that is
the subject of the dispute. Except for good cause shown, the
Court will not consider any discovery dispute that is not
presented in a timely manner." (Id. at ¶
the date of the original CMO, the parties have filed three
motions to amend the CMO requesting extensions of the Phase I
discovery deadline and the deadlines for filing and briefing
the motion to certify a class. (ECF Nos. 31, 44, 46) The
motions indicated that the parties were working cooperatively
to complete Phase I discovery and resolve any disputes.
(Id.) Judge Jackson granted the motions, and the
Order of July 21, 2017 set the Phase I discovery deadline as
September 15, 2017, and the deadline for filing a motion to
certify a class as September 29, 2017, per the parties
request. (ECF No. 47) The Order further stated that all other
deadlines in the CMO remained unchanged. (Id.) On
July 28, 2017, the case was transferred to the undersigned by
Administrative Order. (ECF No. 48) Four business days later,
on August 3, 2017, Defendant filed a Motion to Compel
Deposition Testimony and Motion for Sanctions. (ECF No. 49)
the Plaintiffs filed two unopposed motions for extension of
time to respond to the motion to compel, requesting extended
dates for Plaintiffs' response and Defendant's reply.
(ECF Nos. 51, 53) The motions indicated that the parties were
exploring mediation and that all other deadlines would remain
unchanged. (Id.) On September 15, 2017, the deadline
for Phase I discovery, the parties filed a Joint Case Status
Report and Motion for Extension of Time, again stating that
the parties have continued to discuss the possibility of
mediation. (ECF No. 55) The parties indicated that they would
shortly notify the Court whether they would seek a stay of
the action to pursue mediation or seek a final extension of
the deadline to complete Phase I discovery. (Id.)
The parties also requested that the Court extend the briefing
schedule on Defendant's motion to compel by one month to
"facilitate mediation discussions." (Id.)
The Court granted all motions for extension of time to file
Plaintiffs' response and Defendant's reply to the
motion to compel. (ECF Nos. 52, 54, 56)
over one month has passed, and the parties have not requested
a stay to pursue mediation or filed a timely motion seeking
an extension of the Phase I discovery completion date.
Instead, Plaintiffs filed a Cross-Motion to Compel Responses
to Plaintiffs' Discovery Demands. (ECF No. 58)
regard to Plaintiffs' Cross-Motion to Compel, the Court
will deny the motion. First, the Court notes that Plaintiffs
filed the motion over one month after the Phase I discovery
completion date. Plaintiffs did not file any motion to extend
the deadline as required by the CMO, nor have Plaintiffs
attempted to show good cause for filing a motion to compel
after the close of discovery. See Brown v. Williams,
No. 106CV135 CDP, 2007 WL 1892256, at *1 (E.D. Mo. June 28,
2007) (finding plaintiff waived his right to bring a motion
to compel where said motion saw filed after the discovery
completion date). Second, the CMO clearly states that the
Court will not consider any discovery dispute that is not
presented in a timely manner, which is not more than 15 days
following the event that is the subject of the dispute. (ECF
No. 26) The latest date that the dispute could have arisen
was June 8, 2017, the date that Defendant objected to
Plaintiffs' Second Request for Production of Documents.
(ECF No. 60-10) However, the record shows that Plaintiffs did
not contact Defendants until over a month later, and they did
not present the dispute to the Court until over 4 months
after Defendant's objections. (ECF No. 60-13) Plaintiffs
offer no explanation for this delay or their failure to
comply with the scheduling orders of this Court, including
its failure to timely file a motion for class certification,
and the Cross-Motion to Compel will be denied.
regard to the Defendant's motion to compel, the Court
notes that the motion was timely, and the Court will consider
the motion once the briefing is completed. However, the Court
reiterates that the discovery cut-off date for Phase I has
passed, and any discovery beyond discovery sought in the
motion to compel is untimely.
IT IS HEREBY ORDERED that Plaintiffs'
Cross-Motion to Compel Responses to Plaintiffs' Discovery
Demands (ECF No. 58) is DENIED.
IS FURTHER ORDERED that the parties shall file a
proposed briefing schedule for the motion for class
certification no later than November 3, 2017.
IS FINALLY ORDERED that the parties shall notify the
Court, in writing and no later than November 3, 2017, whether
the Court should refer this case ...