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Pathmark Stores, Inc. v. Gator Monument Partners

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 21, 2009

PATHMARK STORES, INC., PLAINTIFF
v.
GATOR MONUMENT PARTNERS, LLP, DEFENDANT

The opinion of the court was delivered by: Pratter, J.

MEMORANDUM

Defendant Gator Monument Partners, LLP ("Gator") filed a Motion to Compel Production of Documents and for Leave to Serve Subpoenas and Conduct Depositions of Nonparty Witnesses on July 8, 2009. Plaintiff Pathmark Stores, Inc. ("Pathmark") opposes the Motion. In the Motion, Gator made four requests: (1) discovery from Pathmark's former landlords relating to Pathmark's payment of Basic Rent; (2) ongoing discovery about sublease revenue; (3) copies of Pathmark's insurance policies; and (4) discovery from Bank of America relating to an alleged pledge of the relevant lease. The Court held a telephone conference to discuss this Motion on August 19, 2009. For the reasons set forth below, the Court denies Gator's Motion as untimely.

The Federal Rules of Civil Procedure construe discovery broadly and contain no deadline for the filing of a motion to compel. However, "district courts have broad discretion to manage discovery." Flynn v. Health Advocate, Inc., No. 03-3764, 2005 U.S. Dist. LEXIS 1704, at *26 (E.D. Pa. Feb. 8, 2005) (citations omitted). See also Fed. R. Civ. P. 37. Accordingly, a court may find a motion to compel untimely for any number of reasons. Here, Gator's Motion is untimely for three reasons: (1) the Court provided ample opportunity for discovery; (2) Gator should have been aware of any insufficiencies in Pathmark's submissions long before filing this Motion; and (3) Gator filed a Motion for Partial Summary Judgment six weeks before filing the Motion to Compel. See Celgene Corp. v. Centocor, Inc., No. 03-5978, 2006 U.S. Dist. LEXIS 4763 (E.D. Pa. Feb. 8, 2006) (denying a motion to compel for three similar reasons).

First, the Court provided ample time for the parties to conduct discovery in this case.*fn1 Gator's Motion to Compel still was filed almost five months after the expiration of the amended discovery deadline.*fn2 See Flynn, 2005 U.S. Dist. LEXIS 1704, at *26-29 (finding untimely a motion to compel filed less than three months after the expiration of the discovery deadline); Celegene, 2006 U.S. Dist. LEXIS 4763, at *1-3 (denying as untimely a motion to compel filed four months after the discovery deadline).

Second, the Court finds that Gator should have been aware of any alleged deficiencies in Pathmark's filings months before the filing of the pending Motion to Compel. According to Gator, Pathmark produced 3,909 pages of documents on March 24, 2009 in response to an earlier motion to compel, and Gator now alleges that this production was insufficient. Motion at 2. However, in focusing only on Pathmark's alleged production failures, Gator has provided the Court with no explanation as to why any such deficiencies were not discovered and addressed through a motion to compel until July. The volume of Pathmark's additional disclosures does not excuse the significant delay in discovering and challenging any alleged deficiencies. Celgene, 2006 U.S. Dist. LEXIS 4763, at *3-4 (holding that delay in reviewing a "tremendous volume of documents" produced by the opposing party did not justifyan untimely motion to compel).

Third, despite now arguing that the documents it seeks are necessary for the proper adjudication of this case, Gator filed a Motion for Partial Summary Judgment on April 24, 2009*fn3 (Doc. No. 30), six weeks prior to filings the Motion at issue today. See Celegene, 2006 U.S. Dist. LEXIS 4763, at *5 (denying a motion to compel in part because the moving party filed a motion for summary judgment prior to resolution of the motion to compel and without seeking suspension of the deadline for dispositive motions). "At some point, discovery in this case -- as in any other case -- must end." Koresko v. Bleiweis, No. 04-769, 2005 U.S. Dist. LEXIS 10892, at *3 (E.D. Pa. June 1, 2005). As stated by Pathmark, the filing of a motion for summary judgment "is a clear indication that the moving party considered the discovery record both adequate and closed." Response at 17.

For the foregoing reasons, Gator's Motion to Compel is denied as untimely.*fn4 An appropriate Order will follow.

GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE


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