United States District Court, D. New Hampshire
E. Douglass, Esq. Benjamin T. King, Esq. J. Daniel Marr, Esq.
Martha Van Oot, Esq.
MCCAFFERTY, UNITED STATES DISTRICT JUDGE
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.
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”).
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.
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
(1) the length of time since the expiration of the deadline,
(2) the length of time that the moving party has known about
(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,
() the age of the case,
() any prejudice to the party from whom late discovery was
sought, and () 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