United States District Court, S.D. Indiana, Indianapolis Division
JESSICA A. GIBSON, Plaintiff,
INDIANA STATE PERSONNEL DEPARTMENT, JON DARROW, JOHN F. BAYSE, MATTHEW A. BROWN, BRUCE BAXTER, BRUCE LEMMON, Defendants.
ORDER ON PLAINTIFF'S MOTION TO COMPEL
Baker United States Magistrate Judge
the Court is Plaintiff Jessica Gibson's motion to compel
document production and to rescind her agreement not to
request documents related to this lawsuit pursuant to
Indiana's Access to Public Records Act. [Filing No.
91.] In April 2017, Gibson filed her initial complaint
against the Indiana State Personnel Department and five of
its employees, alleging discrimination under Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities
Act, the Rehabilitation Act, and the Family Medical Leave
Act. [Filing No. 1.] Following the initial pretrial
conferences, the Court set April 27, 2018, as the discovery
deadline, in accordance with the parties' proposed Case
Management Plan. [Filing No. 42.] On April 18,
2019-nearly a year after the close of discovery-Gibson filed
a motion to compel document production. The Court denies
Gibson's motion because it is untimely.
argues that her motion to compel should be permitted because
she requested the documents contemplated in her motion before
the close of discovery. Federal Rule of Civil Procedure 37
provides that, “On notice to other parties and all
affected persons, a party may move for an order compelling
disclosure or discovery.” “The Federal Rules of
Civil Procedure place no time limit on the outside date for
the filing of a motion to compel discovery, although motions
to compel filed after the close of discovery generally are
deemed untimely.” Wine & Canvas Dev. LLC v.
Weisser, No. 1:11-CV-01598-TWP, 2014 WL 585406, at *1
(S.D. Ind. Feb. 14, 2014). “District courts have broad
discretion in discovery matters.” Packman v. Chi.
Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001). Motions
to compel filed shortly after the close of discovery and well
in advance of any dispositive motions may be allowed.
Int'l Truck & Engine Corp. v. Caterpillar,
Inc., No. 1:03-CV-265, 2004 WL 3217760, at *4 (N.D. Ind.
May 26, 2004). “[E]ven an untimely filed motion to
compel may still be allowed if the party demonstrates actual
and substantial prejudice resulting from the denial of
discovery.” United States v. Dish Network,
L.L.C., No. 09-CV-3073, 2012 WL 12296621, at *1 (C.D.
Ill. July 20, 2012).
motions to compel filed well after the close of discovery are
unlikely to be granted. See Rossetto v. Pabst
Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000)
(upholding denial of a motion to compel filed two months
after the close of discovery with no excuse for tardiness);
Banks v. CBOCS W., Inc., No. 01 C 0795, 2004 U.S.
Dist. LEXIS 5941, at *2 (N.D. Ill. Apr. 6, 2004) (denying a
motion to compel filed two months after the close of
discovery with an excuse); Koerts v. MCI Telcoms.
Corp., No. 95 C 1039, 1996 U.S. Dist. LEXIS 7866, at *2
(N.D. Ill. June 6, 1996) (denying a motion to compel filed
one month after the close of discovery).
filed her motion to compel nearly a year after the close of
discovery. Furthermore, the dispositive motion deadline was
June 6, 2019, and Defendants filed their summary judgement
motion on that date. [Filing No. 99.] Gibson has not
demonstrated that the denial of her motion to compel will
result in actual and substantial prejudice, nor has she
included compelling reasons for her delay in her motion.
Although courts are required to be lenient with pro
se litigants,  courts are not obligated to tolerate
unnecessary and prolonged delay. James v. McDonald's
Corp., 417 F.3d 672, 681 (7th Cir. 2005)
(“Once a party invokes the judicial system by filing a
lawsuit, it must abide by the rules of the court; a party
cannot decide for itself when it feels like pressing its
action and when it feels like taking a break because trial
judges have a responsibility to litigants to keep their court
calendars as current as humanly possible.”). Because
Gibson filed the motion to compel nearly a year after the
close of discovery, under the facts presented, the Court
declines to allow the motion.
also seeks to rescind her agreement not to request documents
related to this lawsuit through Indiana's Access to
Public Records Act. In the CMP, Gibson agreed to request
documents only through the discovery process and not through
APRA. [Filing No. 17, at ECF p. 10.] Gibson now
alleges that the information she seeks would be available to
her through APRA, and that she did not understand the
implications of agreeing to seek information only through
discovery. [Filing No. 93, at ECF p. 2.] Although
Gibson had several opportunities to raise questions or
concerns about her APRA rights when she appeared in person
before the Court [Filing Nos. 9, 17,
42, 78, 90], this is the first
time she has raised this issue. She asks the Court to allow
her to rescind her agreement and restore her rights under
APRA, presumably out of well-founded concern that her
untimely motion to compel will be denied. Defendants respond
that the agreement was made to ensure that public records
requests would not be used to circumvent discovery and the
related deadlines, thereby unfairly prejudicing Defendants.
Court denies Gibson's request to rescind her agreement.
Rescinding the agreement would require an amendment to the
CMP, and amending the CMP requires a showing of good cause.
Fed.R.Civ.P. 16(b)(4). APRA was not meant to serve as a
substitute for discovery. Appleton Papers Inc. v
E.P.A., 702 F.3d 1018, 1027 (7th Cir. 2012).
By seeking documents from Defendants through APRA nearly a
year after the close of discovery, Gibson is attempting to
use APRA to circumvent discovery, which the Court will not
allow under these circumstances.
these reasons, the Court denies Plaintiff 's motion
[Filing No. 91] to compel document production and
rescind her agreement not to request documents related to
this lawsuit from Defendants pursuant to Indiana's Access
to Public Records Act.
Patterson v. Brady, 131
F.R.D. 679, 683 (7th Cir. 1990) (“In the Seventh
Circuit the district courts are required to be lenient with
pro se litigants and to ensure that justice is done
on the merits rather than on the basis of procedural
technicalities wherever possible.”); De Bauche v.
Harley-Davidson Motor Co. Operations, Inc., 88 Fed.Appx.