More importantly, however, both parties clearly knew that unresolved discovery issues
existed after the conclusion of their Rule 37.2 conference. With two weeks left before the close
of discovery, Banks’s counsel should have anticipated that some additional time would be
necessary in light of these unresolved issues.” If they thought that the differences could be
worked out, they could have filed a motion to extend the close of discovery. In fact, that is
exactly what they did on October 31, and I gave them that extension without any hesitation. It is
possible that Cracker Barrel may not have agreed to a second motion to extend as it did with the
first motion, but this should not have deterred counsel if they truly believed a resolution was
possible.

On the other hand, if Banks’s counsel thought it was in any way possible that a mutual
resolution to outstanding discovery disputes could not be achieved (which indeed is what has
occurred), they should have made preparations for filing a motion to compel before discovery
closed. If filing a detailed motion before the close of discovery was extremely difficult, they
could have filed a short motion to compel before the close of discovery while simultaneously
seeking the court’s permission to file a memorandum in support at a later date. If this too was
extremely difficult, they could have once again moved to extend the close of discovery in order
to prepare a motion to compel. Or at the least they could have sought leave of the court to file a

motion to compel after the close of the discovery if the issues could not be resolved between the

2 Although they do not make this claim (and it would be unfair to infer that they do), I
would not accept any possible rejoinder that Banks’s counsel reasonably anticipated that all
outstanding discovery disputes would be resolved in the ensuing two weeks before discovery
closed, If counsel really thought everything would be resolved by November 26, one would
expect to find some communication to that extent (i.¢., phone calls, letters, or e-mails), but
nothing to that effect has been brought to my attention.

4


likelihood already begun preparing its motion. In the end, therefore, I see no justification for the
untimeliness of Banks’s motion to compel and I find that granting it would prejudice Cracker

Barrel.

For the reasons above, Banks’s Motion to Compel and To Have Facts Deemed Admitted

is DENIED.

ENTER:

De Fonk

James B. Zagel
United States District Judge

pate: _APR 06 2004


In this case, Banks’s motion to compel was filed over two months after the close of
discovery, so it is clearly untimely. In contrast to Rosetto, however, Banks gives an excuse for
his tardiness. He states that after the Thanksgiving holidays, his counsel began preparing this
motion, but was simultaneously occupied with other obligations including preparation of
Findings of Fact and Conclusions of Law for a November 2003 bench trial before Judge Darrah
in the case of Koerber v. Journey's End, Inc., 99 C 0182, which brief was due on January 26,
2004, and preparation for a trial in the matter of Byrne v. Avon Prods., 00 C 5278, which was
tried before Judge Pallmeyer from February 3-5, 2004.

The busy schedule of Banks’s counsel does not justify allowing him to file this untimely
motion. Although I am certainly willing to consider a lawyer’s prior commitments as ante facto
justification for extending deadlines, I am uncomfortable doing so post facto. Anticipating other
case obligations throughout December and January, Banks’s counsel should have made adequate
preparations in November to fulfill or postpone their obligations in this case, If this necessitated
seeking extensions from the court, then appropriate measures should have been taken to ensure
that this was done. But Banks’s counsel took no such measures. In fact, Banks’s counsel have
not even filed the appropriate motion at this late stage, that is a motion seeking leave to file
instanter an untimely motion to compel. Banks's counsel appear to believe that outside
obligations somehow automatically justify the motion’s untimeliness,' but that is not the case.
The motion is clearly untimely, and their excuse of excessive workload is not sufficient to justify

post facto this untimeliness.

' Even this inference is a stretch because Banks’s counsel do not even concede that this
motion is untimely.


parties. Obviously, plenty of options were available, but Banks’s counse} exercised none of
them. Instead, they first brought this issue to my attention two months after the close of
discovery. Furthermore, they did so in a manner that failed to acknowledge the issue’s obvious
untimeliness.

Aside from offering its purported excuse for their untimeliness, Banks’s counsel offer
other defenses to Cracker Barrel’s objection that this motion is untimely. First, they claim that
Cracker Barrel is the party that has been untimely in this dispute. They point out that Cracker
Barre) waited a full month to respond to Banks with “its position on the issues discussed” at the
November 12 conference.? They also point out that Cracker Barrel took a second day of his
deposition and took his wife’s deposition on December 17, 2003, nearly a month after the close
of discovery. However, if Banks is attempting to assert that Cracker Barrel has somehow waived
its right to object to the motion as untimely because it sent a discovery-related letter to Banks and
took additional depositions after the close of discovery, he is sorely misguided. There is no law
to support the proposition that a discovery-related communication sent after the close of
discovery or the occurrence of any discovery after the close of discovery operates as a waiver of

timeliness objections to discovery requests after the close of discovery. Moreover, Banks did not

3 The insinuation that Cracker Barrel first stated “its position” on the underlying
discovery issues in this dispute in the December 9 letter is preposterous. Cracker Barrel first
stated “its position” in a October 29, 2003 letter to Banks. This initial correspondence between
the parties was the impetus for the November 12 conference, where in all likelihood, Cracker
Barrel reiterated and the parties discussed “its position” some more, albeit not to Banks’s
satisfaction. Although perhaps discussing in greater detail and offering additional theories in
support of “its position,” the December 9 letter was certainly not the first time that Cracker
Barrel discussed “its position.” Banks knew Cracker Barrel’s “position” well before the
December 9 letter and well before the close of discovery on November 26.

5


‘Minute Order Form (06/97)

United States District Court, Northern District of Ilinois

Namestawind ag | James B. Zage eae de Oth
CASE NUMBER 01 C795 DATE 4/6/2004
CASE BANKS vs. CBOCS WEST, INC. ET AL
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

ag a Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) Q Answer brief to motion due____. Reply to answer brief due___.

4 o Ruling/Hearingon____—sset for at

(5) a Status hearing[held/continued to] [set for/re-set for]on___setfor__at

(6) o Pretrial conference{held/continued to] {set for/re-set for]on__setfor__—at__—

(7) a Trial[set for/re-set for]on_____at.

(8) Oo (Bench/Jury trial] [Hearing] held/continued toa

(9) Oo This case is dismissed [ with/without) prejudice and without costs[by/agreement/pursuant to}
COFRCP4(m) (Local Rule 41.1 CFRCP41(a)(1) O FRCP41(a)(2).

(10) =x [Other docket entry] Motion to compel is denied. Enter Memorandum Opinion and Order.

ay [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. ,
umber of notices

Notices mailed by judge’s staff, APR n 7 2004

Notified counsel by telephone. date docketef”)

Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

date muted notion
couriroom

DW deputy’s
initials

Date/time. received in. 7
centrai Clerk's Office mailing deputy initials



object to these depositions as untimely like Cracker Barrel has objected to his motion to compel.‘
If there has been any waiver here, it is Banks’s waiver of his opposition to these depositions by
agreeing to let them go forward. Accordingly, there is no merit to the argument that Cracker
Barrel’s actions somehow negate its timeliness objection.’

In addition to the untimeliness of Banks’s motion, granting it would be prejudicial to
Cracker Barrel. On February 3, 2003 — a day after Banks filed the motion but a day before
Cracker Barrel received it by mail ~ the parties were before me for a previously scheduled status
hearing. At the hearing, Cracker Barrel’s counsel, having no knowledge of the motion, stated to
me that discovery had been concluded, and Banks’s counsel did not disagree. Cracker Barrel
accordingly deemed it appropriate to consider setting filing dates for dispositive motions, and in
response Banks’s counsel stated, “We would be very open to that.” I concurred, and set a filing
date of April 6, 2004. At no time did Banks’s counsel — who had filed the instant motion the day
before — inform me or otherwise mention that Banks had filed a motion to compel or believed
there were any outstanding discovery issues to be addressed in the case. To reopen discovery at
this point would delay the schedule set nearly two months ago for dispositive motions (to which I

fully intend to adhere regardless of this diversion) and prejudice Cracker Barrel, which has in all

* In fact, any timeliness objection to these depositions would have in all likelihood been
denied as it appears that the purpose for the October 31 request for a thirty-day extension was to
accommodate the various travel and scheduling issues of the remaining deponents. The
occurrence of these depositions after the close of discovery presumably resulted because of these
aforementioned travel and scheduling issues.

5 In addition, the December 9 letter has no bearing on the timeliness of a discovery
request because it was not a discovery request at all, in the way that Banks’s motion to compel is.
Although the letter addressed a discovery dispute, it merely offered further justification for a
position taken by Cracker Barrel prior to the close of discovery.

6


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TIMOTHY BANKS,
Plaintiff and Counter-Defendant,
v. No, 01 C 0795
Judge James B. Zagel
CBOCS WEST, Inc., d/b/a CRACKER
BARREL OLD COUNTRY STORE,

Defendant and Counter-Plaintiff.

MEMORANDUM OPINION AND ORDER

Timothy Banks filed his Complaint on February 5, 2001, alleging that CBOCS, West, Inc.
(“Cracker Barrel”) had treated him unlawfully during his employment by violating the Family
and Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”). Over a year
later, Cracker Barrel terminated Banks’s employment for insubordinate conduct, and he
subsequently filed an Amended Complaint additionally alleging, inter alia, that Cracker Barrel
terminated him in retaliation for filing his Complaint. Banks now moves to compel additional
discovery from Cracker Barrel or to have certain facts deemed admitted based on the
insufficiency of its responses to his requests for admissions. Cracker Barrel objects to this

motion on the grounds that it was filed after discovery closed and is thus untimely and that B A

ra

Cracker Barrel is prejudiced because a summary judgment briefing schedule was set at a statysp R07 20
on February 3, 2004. Banks claims that these arguments “lack merit,” but contrary to this
assertion, these arguments are very meritorious.

The chronological background to this motion is important. On August 18, 2003, Banks

served his third request for production and first request for admissions on Cracker Barrel.


Cracker Barrel served its responses and objections to the same on September 19. Banks then
transmitted correspondence to Cracker Barrel on October 23 asserting for the first time
deficiencies in its responses and objections. Cracker Barrel responded in detail to Banks’s
correspondence on October 29. On November 3, Banks contacted Cracker Barrel and requested
a Rule 37.2 conference. At approximately the same time, Banks had filed an agreed motion on
October 31 to extend discovery until November 26, which I granted on November 6. Shortly
thereafter, counsel for both parties conducted a Rule 37.2 conference on November 12.
Discovery then closed on November 26 with neither party requesting a further extension or filing
a motion to compel additional discovery. Following up on its promise to consider issues raised
by Banks at the November 12 conference, Cracker Barrel transmitted detailed correspondence to
him on December 9 further explaining its position and declining to provide additional discovery.
Banks offered no response until February 2, 2004, when he filed the instant motion ~ nearly two
months after receiving Cracker Barrel’s correspondence and more than two months after the
November 26 close of discovery.

As a general rule, if a moving party has unduly delayed in filing a motion for an order
compelling discovery, a court may conclude that the motion is untimely. 8A Charles Alan
Wright, Arthur R. Miller, and Richard L. Marcus, Federal Practice and Procedure § 2285 (24
ed. 1994). The Seventh Circuit addressed this issue in Rosetto v. Pabst Brewing Co., 217 F.3d
539, 542 (7th Cir. 2000):

The plaintiffs complain not only about the grant of summary judgment in favor of the

defendant but also about the district court’s denial of their discovery motion. The latter

complaint has no possible merit, The motion was filed two months after the date set by

the court for the completion of discovery. The plaintiffs gave (and give) no excuse for
their tardiness.