The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel*fn1 under Federal Rule of Civil Procedure 37 (Docket No. 40), made while defendants' motion for summary judgment (Docket No. 25) is pending.
Defendants United Refining Company (hereinafter "URC") and United Refining Company of Pennsylvania ("URCP") operate Kwik Fill stores in western New York and western Pennsylvania. This is a Title VII and New York State Human Rights Law action against defendants (see Docket No. 1, Compl.). Plaintiff was employed in defendants' Kwik Fill stores from March 1, 2001, through June 20, 2002 (id. ¶¶ 4, 15-16).
According to the Scheduling Order (Docket No. 8), motions to compel discovery were due thirty days before the discovery deadline (then of December 16, 2005). That Scheduling Order was amended by numerous stipulations (Docket Nos. 15, 18, 19, 22), which the Court so ordered (Docket Nos. 16, 20, 23), where the latest discovery deadline was May 1, 2006, with the Court declaring that the last extension was the final one the Court would entertain (Docket No. 23). Plaintiff first sought the payroll records at issue in this motion four days before the close of discovery (Docket No. 43, Defs. Atty. Aff. ¶ 14; Docket No. 44, Defs. Memo. of Law at 3). According to defendants, plaintiff had never before sought these documents during the one year of discovery in this case (Docket No. 44, Defs. Memo. at 3; see Docket No. 43, Defs. Atty. Aff. ¶ 18).
Plaintiff's Present Motion
Partly in response to defendants' motion for summary judgment (Docket No. 25), plaintiff now essentially cross-moves to compel responses to two document demands, for payroll records of 21 Kwik Fill locations in Erie, Harborcreek, and North East, Pennsylvania, and Olean, New York, for employees at each location from 2001 through 2006 (Docket No. 40). Plaintiff also sought similar records for URC employees at Country Fair and Red Apple locations (Docket No. 43, Defs. Atty. Aff. ¶ 30, Ex. D). Plaintiff also seeks to preclude defendant from opposing plaintiff's claims based upon the documents that were not produced, take the facts and matters sought to be discovered to be established (Docket No. 40, Pl. Atty. Aff., at 6).
At each of plaintiff's repeated requests for these records (Docket No. 40, Pl. Atty. Aff. ¶¶ 3, 5, 7, 9, Exs. A, C, E), defendants objected to their production as being overly broad, unduly burdensome, and seeking otherwise irrelevant information (Docket No. 40, Pl. Atty. Aff. ¶¶ 4, 6, 8, 10, Ex. B, D, F), stating that Kwik Fill had 1,130 employees working at these 21 facilities during the five years plaintiff inquired about (id. ¶ 8). Defendants also noted that plaintiff merely repeated his request without elaborating how the voluminous records were relevant (id. ¶ 10, Ex. F). The last request, counsel's letter of June 29, 2006 (id. ¶ 9, Ex. E), occurred after the discovery deadline of May 1, 2006, and the last discovery demand (id. ¶ 7, Ex. C) of April 24, 2006, was after the time for motion to compel, which would have been thirty day before the May 1, 2006, deadline, or April 1, 2006. Thus, that last demand was beyond the time for a motion to compel.
Plaintiff argues that payroll records from Kwik Fill location number M128 (the Harborcreek store where plaintiff started) were produced, which led plaintiff to believe that the reason he was not hired at the Olean store was pretext and that URC did, in fact, rehire employees who left without prior written notice despite company policy to the contrary (id. ¶ 11). From review of the M128 records, plaintiff found that, in 2002, another employee (Brian Firster) was rehired who initially failed to provide prior written notice of his earlier departure (id. ¶ 13; Docket No. 40, Pl. Aff. ¶ 6). In reply, plaintiff also points out another employee (Tony Putnam) who was rehired after terminating his employment with insufficient notice (Docket No. 46, Pl. Atty. Reply Aff. ¶¶ 4, 9, Ex. B, E).
Plaintiff contends that, "in preparing a response to the motion for Summary Judgment it has become apparent that these documents might very well be helpful in backing up the retaliation claim" (Docket No. 40, Pl. Atty. Aff. ¶ 14). This is the only reference to the pending summary judgment motion, and plaintiff makes no express mention of Federal Rule of Civil Procedure 56(f).
Defendants contend that they responded to plaintiffs' repeated demands regarding Firster, stating that Firster was employed from October 2003 and remained employed with URC (Docket No. 43, Defs. Atty. Aff. ¶ 21) and was not terminated since his hiring and only sought a voluntary leave and had not resigned without sufficient notice (id. ¶¶ 23, 25). Defendants claim that they produced Firster's personnel records for 2003-05 (id. ¶ 27).
Defendants argue that plaintiff's requests regarding persons rehired by any URC retail location were overbroad because they included URC's Country Fair stores which had distinct employment polices and procedures from Kwik Fill (id. ¶¶ 31, 33, Ex. E). Defendants also contend that URC payroll ...