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Negron v. DeFelice

United States District Court, D. New Hampshire

May 17, 2018

Jo Ann Negron
v.
Richard DeFelice, et al.

          Megan E. Douglass, Esq. Benjamin T. King, Esq. J. Daniel Marr, Esq. Martha Van Oot, Esq.

          ORDER

          LANDYA MCCAFFERTY, UNITED STATES DISTRICT JUDGE

         Before the court is a motion to compel filed by plaintiff Jo Ann Negron (doc. no. 31). She seeks interrogatory responses and documents that defendants Richard DeFelice and Valentino's Italian Market of Nashua, LLC, allegedly failed to produce. Defendants object. The court held a hearing on May 11, 2018, and took the matter under advisement. For the following reasons, Negron's motion is granted in part.

         Generally, the discovery that Negron requests relates to two sets of individuals. The first set consists of individuals that Negron has already identified as relevant actors in the complaint, including Wellington DeSouza (a male comparator), Brenden Mazur (same), and herself. Negron seeks, among other things, more information and records about their rate of pay, hours worked, and job-performance reviews. The second set consists of all other employees. Negron wants similar information pertaining to all employees so that she can investigate whether other male comparators exist. In addition, Negron requests tax returns from defendants for the years 2013-2016. Negron asserts that all of the discovery that she requests is relevant to her claim under the Equal Pay Act. See 29 U.S.C. § 206(d)(1) (stating that no employer may “discriminate . . . between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex”).

         Defendants primarily contend that the court should deny the motion as untimely. Where, as here, the scheduling order fixes no specific deadline for filing motions to compel, courts “look to the deadline for completion of discovery.” Days Inn Worldwide Inc. v. Sonia Invs., 237 F.R.D. 395, 397 (N.D. Tex. 2006) (collecting cases); David v. Signal Int'l LLC, No. 08-1220, 2014 WL 6612598, at *2 (E.D. La. Nov. 19, 2014). By that measure, Negron's motion is indeed late. Discovery was to be completed on March 1, Negron sent an email to defense counsel informally seeking the discovery at issue on March 23, and she did not file the present motion until April 4.

         That fact does not necessarily doom Negron's motion, however. A court may still consider a late motion to compel, depending on the circumstances of the case. In a thorough examination of the issue, one court distilled the case law into a list of factors that should be considered in deciding whether to permit a motion to compel filed after the completion of discovery:

(1) the length of time since the expiration of the deadline,
(2) the length of time that the moving party has known about the discovery,
(3) whether the discovery deadline has been extended,
(4) the explanation for the tardiness or delay,
(5) whether dispositive motions have been scheduled or filed,
([6]) the age of the case,
([7]) any prejudice to the party from whom late discovery was sought, and ([8]) disruption of the court's schedule.

Days Inn, 237 F.R.D. at 398. The parties agree that this multi-factor test governs the issue, so the court ...


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