United States District Court, D. New Mexico
ORDER DENYING MONICA WELLINGTON'S MOTION TO
COMPEL INTERROGATORY RESPONSES FROM JPMORGAN CHASE
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant Monica
Wellington's Motion to Compel Interrogatory Responses
from JPMorgan Chase Bank (“JPMC”), filed on
October 10, 2018. Doc 108. Defendant JPMC filed a response on
October 24, 2018. Doc. 110. Ms. Wellington filed a reply on
November 7, 2018. Doc. 116. Having reviewed the parties'
filings and the relevant law, the Court will DENY the motion
because it is untimely.
Wellington's motion asks the Court to compel JPMC to
provide answers to her first set of interrogatories. Doc.
108. JPMC provided answers to the interrogatories via United
States Postal Service mail on September 6, 2018. Doc.
108-2. A party served with objections to
interrogatories must file his or her motion to compel within
twenty-one (21) days of service of the objections.
D.N.M.LR-Civ. 26.6. Thus, the deadline for Ms. Wellington to
file her motion to compel was September 27, 2018. Ms.
Wellington did not file her motion until October 10, 2018,
thirty-four (34) days after she received the objections.
See Doc. 108. The motion therefore is untimely, and
the Court will deny it.
reply, Ms. Wellington asks the Court to waive the deadline
set in D.N.M.LR-Civ. 26.6 in order to “avoid
injustice.” Doc. 116 at 2. The Court may change the
21-day period for a party to file a motion to compel if a
party shows “good cause” for failure to comply
with the deadline. D.N.M.LR-Civ. 26.6. The Court also may
waive the local rules in order “to avoid
injustice.” D.N.M.LR-Civ. 1.7. Ms. Wellington, however,
fails to show either “good cause” for her failure
to comply with the deadline, or any injustice that would
result from the Court enforcing its local rule. The three
cases on which Ms. Wellington relies in her reply involved
extenuating circumstances, which led the Court to excuse the
moving party's late filing or non-compliance with the
local rules. E.g., Benavidez v. Sandia Nat'l
Laboratories et al, 15-cv-00922-JB-LF, Doc. 94 at 54-55
(D.N.M. March 30, 2017) (Court excused plaintiff's
failure to meet and confer because plaintiff attempted to
confer, and because the motion raised real discovery disputes
that the Court needed to resolve); Pueblo of Jemez v.
United States, 12-cv-00800-JB-JHR, Doc. 218 at 7 (D.N.M.
June 13, 2018) (Court excused defendant's late filing of
motion to compel because parties had stipulated to a
“suspension” the of applicable rules); Cabot
v. Wal-Mart Stores, Inc., 11-cv-00260-JB-RHS, Doc. 81 at
19-20 (D.N.M. Feb. 16, 2012) (Court excused plaintiff's
late filing of motion to compel because parties had been
trying to resolve the dispute, and defendant did not object
to the motion as untimely). None of these extenuating
circumstances are present here. Ms. Wellington argues only
that “21 days is simply an insufficient amount of
time” for her to file her motion to compel, given that
she was simultaneously involved in a discovery dispute with
MTGLQ. Doc. 116 at 2-3. The Court does not find this to be an
extenuating circumstance that would warrant excusing Ms.
Wellington's failure to comply with the Court's local
Wellington next asks the Court for an extension of time under
Federal Rule of Civil Procedure 6(b). Doc. 116 at 2. This
rule allows the Court to extend the time to act:
(1) In General. When an act may or must be done within a
specified time, the court may, for good cause, extend the
(A) with or without motion or notice if the court acts, or if
a request is made, before the original time or its extension
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
Fed. R. Civ. P. 6(b). Thus, a party requesting a
post-deadline extension must do so by motion and must
demonstrate that the party's failure to meet the deadline
was the result of excusable neglect. Lujan v. Defenders
of Wildlife, 497 U.S. 871, 896 (1990).
Ms. Wellington did not file a motion requesting an extension
of time, as required under Rule 6(b)(1)(B). Ms. Wellington
first requested an extension of time to file the instant
motion to compel in her reply, on November 7, 2018. Doc. 116
at 2. Arguments raised for the first time in a reply brief
are deemed abandoned or waived. See United States v.
Redcorn, 528 F.3d 727, 737 n.4 (10th Cir. 2008).
even if Ms. Wellington had filed a motion, she fails to show
“excusable neglect.” See Fed. R. Civ. P.
6(b)(1)(B). The only reason Ms. Wellington offers for her
failure to timely file her motion to compel is that
“[s]he was dealing with having to analyze all 16
responses from 2 different parties, attempt resolution with
each, and then prepare two separate motions. . . . 21 days is
simply an insufficient amount of time for doing all the above
by one lone lay person.” Doc. 116 at 3. However,
“it is widely accepted that neglect due to a busy
schedule is not excusable.” Keeton v. Morningstar,
Inc., 667 F.3d 877, 883 (7th Cir. 2012) (quoting
Harrington v. City of Chicago, 433 F.3d 542, 548
(7th Cir. 2006)).
Court finds Ms. Wellington's motion to be untimely, and
it will be denied on this basis. Ms. Wellington is hereby
ordered to pay the reasonable expenses JPMC incurred in
opposing this motion, including attorney's fees.
See Fed. R. Civ. P. 37(a)(5)(B). JPMC shall submit
its affidavit of expenses no later than December 14, 2018.
Ms. Wellington may file objections to the affidavit of
expenses no later than December 28, 2018.
Monica Wellington's Motion to Compel Interrogatory
Responses from ...