Owens v. Meijer, Inc.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN OWENS,
Plaintiff,
v.
MEIJER, INC.,
Defendant.
____________________________/
Case No. 24-10732
Matthew F. Leitman
United States District Judge
Curtis Ivy, Jr.
United States Magistrate Judge
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL (ECF No. 28)
Pending before the Court is Plaintiff’s Motion to Compel Full and Complete
Discovery Responses (ECF No. 28). The District Judge referred this motion to the
undersigned. (ECF No. 29). The motion is fully briefed and ripe for adjudication.
For the following reasons, Plaintiff’s motion is DENIED.
I. 	BACKGROUND
On January 24, 2025, the Court filed an Amended Scheduling Order that set
June 23, 2025, as the close of fact discovery. (ECF No. 11). Plaintiff Allen Owens
filed his motion to compel on June 25, 2025, two days after fact discovery closed.
There, Plaintiff moved to compel Defendant’s responses to ten discovery requests
(Interrogatory Nos. 1, 3, 8, and 13–15 and RFP Nos. 17 and 26) that Defendant
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initially responded to nearly a year earlier on July 25, 2024.1 (ECF No. 28,
PageID.326, PageID.328–35).
According to Plaintiff, his counsel followed up with Defendant on June 16,
2025, once he realized that Defendant was purportedly withholding additional
discoverable materials. (Id. at PageID.326; ECF No. 34, PageID.462–63
(containing the June 16 email from Plaintiff’s counsel inquiring about
Interrogatory Nos. 13–15 and RFP Nos. 17 and 26); ECF No. 36, PageID.476). He
apparently came to this realization only after personally reviewing the documents
Defendant produced in light of deposition testimony. (ECF No. 36, PageID.476).
Defendant ultimately stood on its objections to Interrogatory Nos. 13–15 and RFP
Nos. 17 and 26; it also provided a supplemental response to RFP No. 17. (ECF
No. 34, PageID.461–62; ECF No. 36, PageID.476). Plaintiff’s motion followed.
II. 	ANALYSIS
Defendant lodges three main arguments in opposition to Plaintiff’s motion.
Specifically, it argues that Plaintiff’s motion should be denied because (1) the
motion is untimely; (2) Plaintiff did not seek concurrence or confer with Defendant
on half of the discovery requests at issue in violation of the Federal Rules of Civil
Procedure and this Court’s Local Rules; and (3) the motion fails on its merits.
1 Defendant also served supplemental discovery responses on August 29, 2024. (ECF
No. 28, PageID.326). Defendant provided additional supplemental documents without formally
serving further supplemental responses. (Id.).
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(ECF No. 33, PageID.436). The Court finds that Plaintiff’s motion falls on
Defendant’s timeliness argument which, in turn, touches on Defendant’s
concurrence argument.
1. 	Governing Standards
“‘A district court may properly deny a motion to compel discovery where
the motion to compel was filed after the close of discovery.’” Pittman v. Experian
Info. Sols., Inc., 901 F.3d 619, 642 (6th Cir. 2018) (quoting Willis v. New World
Van Lines, Inc., 123 F. Supp. 2d 380, 401 (E.D. Mich. 2000)); see also Craig-
Wood v. Time Warner N.Y. Cable LLC, 549 F. App’x 505, 508 (6th Cir. 2014) (“In
general, a district court does not abuse its discretion by denying an untimely
motion to compel that violated unambiguous discovery deadlines[.]”). Though
“there is no authority that automatically precludes the filing of a motion to compel
discovery after the close of discovery,” the decision to do so falls within the
Court’s discretion. Suntrust Bank v. Blue Water Fiber, L.P., 210 F.R.D. 196, 199
(E.D. Mich. 2002). Indeed, this Court has denied motions to compel because they
were untimely and reviewing courts have affirmed such denials. See Pittman, 901
F.3d at 642–43 (collecting cases denying untimely motions and appellate cases
affirming denials based on the motion’s untimeliness); Santifer v. Inergy Auto.
Sys., LLC, Case No. 5:15-cv-11486, 2016 WL 4011268, at *2 (E.D. Mich. July 27,
2016) (same).
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To determine whether a motion to compel filed after the close of discovery
should be denied as untimely, the Court applies Rule 16(b)’s good cause standard.
See Santifer, 2016 WL 4011268, at *2 (citing Suntrust, 210 F.R.D. at 201). Good
cause, in turn, is based on the moving party’s due diligence in attempting to meet
the relevant discovery deadline. See Leary v. Daeschner, 349 F.3d 888, 906 (6th
Cir. 2003) (citation omitted); see also Garza v. Lansing Sch. Dist., 972 F.3d 853,
879 (6th Cir. 2020) (citation omitted). Courts consider five factors to determine
whether a movant acted diligently, namely: “(1) when the moving party learned of
the issue that is subject to discovery; (2) how the discovery would affect the ruling
below; (3) the length of the discovery period; (4) whether the moving party was
dilatory; and (5) whether the adverse party was responsive to . . . prior discovery
requests.” Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014).
2. 	Discussion
As an initial matter, the Court will only consider here Interrogatory Nos. 13–
15 and RFP Nos. 17 and 26. This is because these are the only discovery requests
Plaintiff discussed with Defendant before filing his motion to compel. As
Defendant pointed out, this Court’s Local Rules require parties to seek concurrence
prior to filing a motion for relief. E.D. Mich. LR 7.1(a)(1). In particular, the Local
Rules state that:
the movant must confer with the other parties and other persons
entitled to be heard on the motion in good faith and in a manner that
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reasonably explains the basis for the motion and allows an interactive
process aimed at reaching agreement on the matter or those aspects of
the matter that can be resolved without court intervention, given the
nature of the contemplated motion.
Id. This requirement applies equally to motions to compel discovery. E.D. Mich.
LR 37.1. Federal Rule 37(a)(1) also requires “certification that a movant has in
good faith conferred or attempted to confer with the person or party failing to make
disclosure or discovery in an effort to obtain it without court action.”
When Plaintiff reached out to Defendant to resolve the purported discovery
issues, Plaintiff only asked about Interrogatory Nos. 13–15 and RFP Nos. 17 and
26. (ECF No. 33, PageID.448; ECF No. 34 (reflecting the email chain containing
the June 16th email)). As such, the ensuing email chain between counsel on June
16 and June 18 only focused on those discovery requests. Plaintiff suggests that
“Counsel exchanged emails on June 16 and June 18[,] 2025 identifying each
category now before the Court,” but did not include those emails with his briefing.
(ECF No. 36, PageID.477). Nor did Plaintiff contest the veracity of the emails
Defendant filed with the Court.
Since there was no discussion of Interrogatory Nos. 1, 3, and 8 and RFP
Nos. 12 and 18, Plaintiff did not adhere to Local Rules or Federal Rule 37. After
all, the language quoted above requires the parties to attempt to resolve the issue
prior to moving for the Court’s intervention. If the parties never discussed five of
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the ten discovery requests at issue, then it follows that the parties could not have
attempted to resolve those related disputes before moving for relief.
Plaintiff argues that Defendant could have reached out about the discovery
requests not covered in the emails between counsel after he filed the motion. (ECF
No. 36, PageID.478–79). But Local Rule 7.1(a) requires concurrence to occur “in
advance of filing the motion” so that there may be “a good faith interactive
exchange aimed at resolving the matter.” Federal Rule 37(a)(1) also requires the
motion to include the above-mentioned certification; the movant cannot do so if
the conference postdates the motion. So while Defendant certainly could have
reached out, doing so would not cure Plaintiff’s violation of Local and Federal
Rules.
As Plaintiff did not adhere to Local and Federal Rules, his motion regarding
Interrogatory Nos. 1, 3, and 8 and RFP Nos. 12 and 18 is DENIED. The good
cause analysis therefore does not include these discovery requests.
Turn now to whether Plaintiff acted diligently regarding his motion to
compel responses to Interrogatory Nos. 13–15 and RFP Nos. 17 and 26. As to the
first factor, it is unclear when Plaintiff learned of the bases for the remaining
disputed discovery issues. As mentioned, Defendant submitted its initial and
supplemental discovery responses in July 2024 and August 2024, respectively.
Plaintiff asserts he only learned of gaps in Defendant’s production after depositions
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concluded. As best the Court can discern, this would be between the date of
Plaintiff’s own deposition on March 14, 2025—a proposition Plaintiff did not
contest—and when Plaintiff personally reviewed Defendant’s production at some
point before the June 16 email.2 (ECF No. 33, PageID.476; ECF No. 36,
PageID.476). As such, the information needed to timely file a motion to compel
was available, at the latest, roughly two to three months before the close of fact
discovery; that is, Plaintiff could have reached out to resolve the disputed
discovery months before Plaintiff’s counsel did so.
This would appear to have some truth for RFP No. 17. This discovery
request asked for documents relating to any admission or declaration against
interest that Defendant identified with respect to the allegations in the complaint.
(ECF No. 28-2, PageID.354). After Plaintiff’s counsel emailed Defendant on June
16, Defendant referred Plaintiff to his own deposition testimony from March 14.
Even so, it is unclear why Plaintiff waited until one week before the close of fact
discovery to request a supplement for RFP No. 17 when a likely source for any
such declarations against interest would be Plaintiff’s deposition testimony. In any
case, the information underlying Plaintiff’s motion to compel a response to RFP
2 Defendant filed the transcript with its motion for summary judgment. (ECF No. 38-2).
The transcript was certified on March 31, 2025. (Id. at PageID.613).
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No. 17—e.g., Plaintiff’s deposition—was available months before discovery
closed.
That said, Plaintiff did not explain how deposition testimony enabled him to
realize the supposed gaps in Defendant’s production. RFP No. 26, for instance,
asked Defendant to provide copies of any documents that have been subpoenaed in
this case. (ECF No. 28-2, PageID.357). Defendant apparently did exactly that
based on the June email chain between the parties. (ECF No. 33, PageID.454;
ECF No. 34, PageID.462). It is unclear how Plaintiff’s deposition caused him to
realize any gaps in the documents Defendant provided in response to RFP No. 26
considering that his testimony does not appear to refer to subpoenaed documents or
RFP No. 26. (ECF No. 38-2) (omitting references to the term “subpoena” or RFP
No. 26). Still, nothing precluded Plaintiff from requesting a supplement to RFP
No. 26 prior to Plaintiff’s deposition.
There is also no explanation as to why Plaintiff did not realize the alleged
gaps in Defendant’s production with respect to Interrogatory Nos. 13 and 15 after
it submitted responses in July and August 2024. Plaintiff contends that he needs
supplemental responses to Interrogatory Nos. 13 and 15 because (1) he does not
know how Defendant “codes” attendance policy violations, and (2) Plaintiff did
not know the names of all his coworkers. Yet, in response to those Interrogatories,
Defendant referred to a chart of anonymous employees who may be similarly
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situated to Plaintiff based on race and the sort of purported attendance violation at
issue here (e.g., failing to report to work for multiple scheduled shifts). (ECF No.
28-1, PageID.342–43, PageID.345–46). Plaintiff says that supplemental
information is needed to determine whether this chart includes “all persons
terminated for anything related to attendance”; but, as Defendant indicated, the
chart reflects those terminated for failing to report to work for multiple shifts. So
the basis for any dispute regarding the rationale for those terminations would have
been apparent as early as July 2024. Likewise, if the concern was for the identity
of Plaintiff’s coworkers, then that issue would have been apparent well before
depositions occurred once he received the chart of anonymous employees.
The same can be said for Interrogatory No. 14. Plaintiff insists that a
supplemental response is needed for Interrogatory No. 14 because he needs “to see
if there are people outside of the protected class who were not terminated or
disciplined, and those who were disciplined in other ways short of termination[.]
(ECF No. 28, PageID.331). But when Defendant referred Plaintiff to the same
anonymized list of employees, it would have been clear at that time that the list
only included employees that Defendant terminated. Defendant’s initial response
from July 2024 expressly said as much. (ECF No. 28-1, PageID.342) (referring to
Food Night Clerks who were “terminated”). The basis for this aspect of Plaintiff’s
motion was also available well before depositions occurred.
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In short, the information needed to timely move to compel supplemental
responses to Interrogatory Nos. 13–15 was available nearly a year before Plaintiff
filed his untimely motion. Similarly, the informational bases regarding RFP Nos.
17 and 26 were also apparently available months before the close of fact discovery.
Accordingly, the first factor in the good cause analysis weighs in Defendant’s
favor.
The remaining factors also favor Defendant. The discovery requests at issue
seemingly touch on the merits of Plaintiff’s claims as well as evidentiary
determinations. But fact discovery was open for a year following an amendment to
the scheduling order. (ECF Nos. 8, 11). See Allen v. Cam’s Transp. Co., No. 3:22-
CV-403-KAC-DCP, 2024 WL 3852133, at *9 (E.D. Tenn. Aug. 16, 2024)
(denying the movant’s untimely motion to compel because, in part, the disputed
discovery related to the issue of liability and discovery was open for more than
thirteen months following amendments to the scheduling order). Plaintiff was also
dilatory. As explained above, he had months to file a timely motion to compel,
and there is no explanation why Plaintiff waited until one week before discovery
closed to review the deposition testimony that purportedly caused him to realize
issues with Defendant’s production.3 And as to the final factor, Defendant was
3 Indeed, the fact that Plaintiff managed to seek concurrence on the remaining discovery
requests and file a motion nine days after doing so confirms that Plaintiff could have filed a
timely motion had he not waited so long to review the deposition transcript.
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prompt in its responses to discovery, and Plaintiff has not raised issues with the
timeliness of Defendant’s responses.
At bottom, Plaintiff did not act with due diligence to file a timely motion to
compel. Plaintiff also indicated that a timely motion could not have been filed
because his counsel had depositions nearly every day and was out of office on June
23, 2025 (the day discovery closed). (ECF No. 36, PageID.476). The Court
cannot conclude Plaintiff acted with due diligence when he waited until the last
possible week to seek supplemental responses, especially considering that the
information for that motion was available for months and Plaintiff’s counsel’s
schedule precluded a timely submission to the Court.
And at any rate, the Court’s Amended Scheduling Order states that “[t]he
Court will not order discovery to take place after the cutoff date.” (ECF No. 11,
PageID.70). This Court has previously denied a motion to compel where the
scheduling order contained similar language. In West v. Lake State Ry. Co., the
movant filed a motion to compel two days after the close of discovery. Case No.
16-cv-12626, 2017 U.S. Dist. LEXIS 215216, at *1–2 (E.D. Mich. May 31, 2017).
The Court denied the motion as untimely considering the movant had eight months
to conduct discovery. Id. at *2. Additionally, the Court’s scheduling order
informed the parties that it would “not order supplemental discovery to take place
subsequent to the discovery cutoff date[.]” Id. at *2–3. The circumstances from
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West map well on to the facts here: Plaintiff filed his motion two days after the
close of fact discovery and the Court instructed the parties that it would not order
discovery after the cutoff date.
Plaintiff contends that the language from the Amended Scheduling Order
means that Plaintiff cannot send new discovery requests after the cutoff date which
is, according to him, “the ordinary meaning” of such language. (ECF No. 36,
PageID.475). Yet Plaintiff did not offer any authority in support of this position.
And the West Court’s decision is directly contradictory to this proposition. There,
the movant sought an order compelling production of material related to discovery
requests served and responded to before the discovery cutoff date. West v. Lake
State Ry. Co., Case No. 16-cv-12626, ECF No. 18 (E.D. Mich. May 10, 2017)
(moving to compel documents related to the non-movant’s initial disclosures and
movant’s first set of discovery requests which non-movant responded to months
before the discovery cutoff). The Court in West still denied the motion as
untimely.
Thus, even if Plaintiff had shown the requisite due diligence for the Court to
assess the merits of his untimely motion—which he did not—this late submission
would still run afoul of the Court’s Amended Scheduling Order.
III. 	CONCLUSION
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Accordingly, for the above stated reasons, Plaintiff’s Motion to Compel Full
and Complete Discovery Responses (ECF No. 28) is DENIED.
IT IS SO ORDERED.
The parties here may object to and seek review of this Order, but are
required to file any objections within 14 days of service as provided for in Federal
Rule of Civil Procedure 72(a) and Local Rule 72.1(d). A party may not assign as
error any defect in this Order to which timely objection was not made. Fed. R.
Civ. P. 72(a). Any objections are required to specify the part of the Order to which
the party objects and state the basis of the objection. When an objection is filed to
a magistrate judge’s ruling on a non-dispositive motion, the ruling remains in
effect unless it is stayed by the magistrate judge or a district judge. E.D. Mich.
Local Rule 72.2.
Date: November 17, 2025 	s/Curtis Ivy, Jr.
Curtis Ivy, Jr.
United States Magistrate Judge
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