United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
COMPEL DEFENDANTS TO RESPOND TO WRITTEN DISCOVERY (DOCKET NO.
TIMOTHY S. HILLMAN DISTRICT JUDGE.
Burgos-Martinez (“Plaintiff”) has filed claims
for excessive use of force against the City of Worcester,
Gary Gemme, Steve Roche, Michael Tarckini, William Escobar,
Gary Morris, Terrence Gaffney, Neftali Batista, Thomas Duffy,
Ignacio Garcia, and Christopher Panarello
(“Defendants”). He has filed this motion to
compel Defendants to respond to written discovery. For the
reasons below, Plaintiff's motion (Docket No. 33) is
10, 2013, Defendants executed a search warrant at
Plaintiff's home. Plaintiff arrived at his home while the
search was in progress and alleges that Defendants
subsequently used excessive force while restraining him.
underlying criminal proceedings related to Plaintiff's
arrest, this Court twice granted a stay of discovery. (Docket
Nos. 20 & 24). On January 19, 2018, this Court lifted the
stay and, on February 23, 2018, Defendants filed an amended
scheduling order which, among other things, set forth a
written discovery deadline of July 6, 2018. (Docket No. 26).
On June 29, 2018, Plaintiff endorsed Defendant's
timeline. (Docket No. 27). Subsequently, this Court adopted
the parties' proposal and ordered that fact discovery be
completed by October 12, 2018. Id.
October 5, 2018, Plaintiff served written discovery upon
Defendants. Defendants objected that Plaintiff's written
discovery request failed to observe the July 6, 2018
deadline. On November 2, 2018, Plaintiff filed this motion to
compel Defendants to respond. (Docket No. 33).
district court's case-management powers apply with
particular force to the regulation of discovery and the
reconciliation of discovery disputes.” Faigin v.
Kelly, 184 F.3d 67, 84 (1st Cir. 1999). Several courts
have used this management power to deny untimely motions to
compel. See, e.g., Amoah v. McKinney, 2016
WL 3906580, at * 1 (D. Mass. July 14, 2016) (“[T]he
motion [to compel] is denied as untimely.”);
Bernio-Ramos v. Flores-Garcia, 2015 WL 9169678, at
*1 (D.P.R. Dec. 11, 2015) (“Discovery should have been
completed by October 30, 2015. Plaintiff did not seek an
extension of that deadline before it elapsed. . . . Instead,
she has asked for an order to compel, more than one (1) month
after the discovery deadline expired. That is not
enough.”); Flynn v. Health Advocate, 2005 WL
288989, *7 (E.D. Penn. Feb. 8, 2005) (denying motion to
compel filed past the discovery deadline); see also
Modern Continental/Obayashi v. Occupational Safety
& Health Review Com'n, 196 F.3d 274, 281 (1st
Cir. 1999) (upholding a district court's decision to deny
a motion to compel filed after fact discovery deadline);
Richardson v. City of New York, 326 Fed.Appx. 580,
582 (2d Cir. 2009) (same).
justify the untimely motion, Plaintiff's counsel
essentially argues that he was preoccupied with other
matters. See Docket No. 33 at 3 n.2 (“From
June 28, 2018, and continuing through August, both of
plaintiff's counsel were preoccupied as local counsel in
an emergency class action before this Court . . . and were
temporarily impeded in representation of the
plaintiff.”). Courts, however, have consistently found
this justification inadequate in similar contexts.
instance, in de la Torre v. Cont'l Ins. Co. the
First Circuit held that attempting to prove excusable neglect
by arguing that counsel was preoccupied with other matters
“has been tried before, and regularly found
wanting.” 15 F.3d 12, 15 (1st Cir. 1994). The court
noted: “‘[m]ost attorneys are busy most of the
time and they must organize their work so as to be able to
meet the time requirements of matters they are handling or
suffer the consequences.'” Id. (quoting
Pinero Schroeder v. FNMA, 574 F.2d 1117, 1118 (1st
Cir. 1978)); see also Deo-Agbasi v. Parthenon Group,
229 F.R.D. 348, 352 (D. Mass. 2005) (“Thus, the reason
for the delay, the foremost factor in determining excusable
neglect, weighs heavily against Deo-Agbasi because
Porter's workload and carelessness are not adequate to
excuse the neglect in this case.”).
same is true here. That Plaintiff's counsel was busy is
not a satisfactory justification for the untimely motion.
Despite their workload, “litigants have an unflagging
duty to comply with clearly communicated case-management
orders.” Rosario-Diaz v. Gonzalez, 140 F.3d
312, 315 (1st Cir. 1998). Because Plaintiff's counsel
failed to comply with that duty, he and his client must now
live with the consequences.
reasons stated above, Plaintiff's motion to compel