• November 30, 2016

HourglassA recent reminder: U.S. Magistrate Judge Steven E. Rau (D. Minn.) is strict on deadlines. (Here is an earlier post on the topic.)

In the protracted saga of Receiver R.J. Zayed’s litigation against Associated Bank due to its alleged (arguably passive) role in a Ponzi scheme (see previous post, here), the Plaintiff brought a motion to compel after the deadline for fact discovery but before the deadline for “non-dispositive motions.”

While this might seem innocuous to many, it could be fatal for Zayed’s motion.

Photo by Jonathan Rotondo-McCord

Photo by Jonathan Rotondo-McCord

This is one of those litigation traps or crevasses.

All civil litigators know that a motion to compel is a “non-dispositive motion,” so, defined as such, Plaintiff’s motion was timely. Plaintiff filed the motion before the “non-dispositive motion” deadline.

On the other hand, a motion to compel is a motion to compel additional fact discovery so, defined as such, arguably it should be brought within the period for fact discovery, which it was not. It could have been, Judge Rau found. So, it was denied as untimely.

With all due respect, I think Judge Rau got this one wrong. See the most recent scheduling order in the case and in particular, this passage:

All non-dispositive motions and supporting documents (notice of motion, motion, affidavits, exhibits, memorandum of law, and proposed order)…shall be scheduled, filed and served on or before October 21,¬†2016. This deadline includes motions relating to discovery

How can the Court impose a deadline for “fact discovery” of June 2016 (in September, 2016), expressly provide for motions to compel relating to discovery of October 2016, and then deny a motion because it was past the period for “fact discovery”?

Regardless of the outcome of this particular motion, civil litigators should note this hidden risk and do whatever they can to guard against it.


Leave a Reply

Your email address will not be published. Required fields are marked *