United States District Court, S.D. Texas, Houston Division
Hanovice Palermo United States Magistrate Judge
the court is Total's motion to compel production or for
in camera review of 100 documents MOGUS withheld as
privileged. Dkt. No. 115. MOGUS filed a motion to defer
ruling until Judge Smith reviews the identical motion filed
in the related case, Dkt. No. 204, No. 4:16-cv-2674. Dkt. No.
136. Although this Court set these motions for hearing
tomorrow, this afternoon Judge Smith entered an order denying
Total's motion on the basis that it is untimely. The
Court agrees with Judge Smith's reasoning and adopts it
in this Order.
Total's request, Judge Atlas extended the deadlines in
this case, including the discovery deadline to January 19,
2018, and the motion cut-off to February 16, 2018. (Dkt. No.
67). On March 9, 2018, Total filed this motion to compel, two
months after the discovery deadline and three weeks after the
motion cut-off. Total claims the documents sought are
relevant to the valuation of consideration that MOGUS
allegedly received in an earlier bankruptcy proceeding, an
issue raised in both parties' summary judgment motions
filed in February and, according to Judge Smith's Order,
asserted in both parties' motions for summary judgment
filed last year in the case pending before Judge Hittner.
Dkt. No. 215, No. 4:16-cv-2674.
objects that the motion is untimely, relying primarily upon
cases finding that a motion to compel is untimely if filed
after the discovery deadline has passed.
See Gonzalez v. Harlingen CISD, 2015 WL 12748636
(S.D. Tex. 2015); Days Inn Worldwide, Inc. v. Sonia
Inv., 237 F.R.D. 395 (N.D. Tex. 2006). Although Rule 37
does not expressly set a deadline for discovery motions,
those courts held that the discovery deadline in a scheduling
order implicitly “marks the date by which a motion to
compel should be filed.” Gonzales, supra, at
*2. Those decisions point to several factors guiding the
court's discretion in whether to allow the tardy filing,
such as the length of the delay, the explanation offered,
previous extensions, whether dispositive motions have been
filed, etc. See Days Inn, 237 F.R.D. at 399. A
party's “strong need” for particular
documents is not among the factors listed. Id.
Total's rationale for its tardy motion -that MOGUS raised
the issue of valuation in its summary judgment papers - is
not among the factors listed, and would not be grounds for an
untimely motion under this line of cases.
Court previously granted Total an extension to obtain
discovery to respond to MOGUS' first summary judgment.
MOGUS had filed an early summary judgment shortly after the
case was filed. Dkt. No. 28. At that time, Total filed a Rule
56(d) motion, asking the Court to deny MOGUS' motion so
that it could get the needed discovery to respond. Dkt. No.
40. On January 10, 2017, Judge Atlas granted the Total's
motion and denied MOGUS' motion for summary judgment
without prejudice so that the parties could engage in
discovery. Dkt. No. 43. Thus, the motion for summary judgment
was delayed more than a year so that Total could obtain
discovery it needed to respond.
February, both parties filed motions for summary judgment
before Total filed the motion to compel in March.
See Dkt. Nos. 92, 97, & 98. Thus, there has
already been a long delay based on the same excuse and both
parties have now filed motions with discovery completed.
Judge Smith found, there is another compelling reason to deny
the motion as untimely. Total's motion was filed three
weeks after the motions deadline the Court
deadline applied to all motions, including discovery
motions. “Rule 6(b) [of the Federal Rules of Civil
Procedure] governs the extension of time periods prescribed
by the federal rules or by an order of the district
court.” 4B Wright, Miller & Marcus, Fed. Prac.
& Proc. Civ. § 1165 at 595 (4th ed. 2015).
Under Rule 6(b)(1)(B),
the district court may order an extension after the
expiration of a specified time period, but only for
“good cause” and where the party's failure to
act in a timely fashion was the result of “excusable
Id. at 609; see also Judge David Hittner,
Federal Civil Procedure Before Trial: 5th Circuit
Edition, 12:88.2 (2017) (“A party who has missed a
filing deadline must obtain an order permitting late filing.
A showing of “excusable neglect” is
has not presented good cause for extending the motion
deadline, nor has it shown why its neglect of the existing
motion deadline should be excused. Total could not have been
surprised when MOGUS raised the valuation issue because Total
had raised the issue itself in its motions. See Dkt.
Nos. 97 & 98. The absence of the requested documents did
not prevent Total from responding to MOGUS' arguments;
otherwise, relief could have been sought via a Rule 56(d)
motion for additional discovery, which Total requested a year
earlier but chose not to assert with respect to this
information. Moreover, based on Total's arguments, the
documents sought pertain to MOGUS' estimated valuations
at the time of the bankruptcy in 2013. These documents hardly
seem relevant to establish what, if anything, MOGUS actually
received in payment from ATP or the contributed assets. As
cited in the summary judgment briefing, the valuation issue
was raised in depositions. Thus, Total had ample opportunity
to obtain discovery on this issue and has failed to establish
good cause or excusable neglect for its delay in filing in
this case its motion to compel production of documents that
MOGUS claims are privileged.
fact, long before either deadline expired, Total filed
various discovery motions in the case pending before Judge
Hittner, challenging MOGUS' privilege log and seeking
appointment of a special master. Dkt. No. 77, No.
4:16-cv-2674. Disappointed with Judge Smith's ruling,
Total moved for reconsideration, which he also denied. Dkt.
200, No. 4:16-cv-2674. Judge Smith found that this current
motion is essentially another request to reconsider that
ruling, targeting a particular subset of documents on
MOGUS' privilege log. Dkt. No. 215, No. 4:16-cv-2674.
Because Total has already been given two bites at that apple,
Judge Smith held that it is not entitled to a third.
has not presented good cause to extend the motion cut-off
date, nor is its neglect of the existing deadline excusable
under Rule 6(b). Total's ...