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Black v. Buffalo Meat Service Inc.

United States District Court, W.D. New York

August 3, 2017

DARCY M. BLACK, Plaintiff,
BUFFALO MEAT SERVICE INC., et al., Defendants.


          Hon. Hugh B. Scott United States Magistrate Judge.

         Before the Court are the applications of the parties to recover motion costs for their motions to compel: plaintiff's motion (Docket No. 50) and defendants' motion (Docket No. 51). This Court (Docket No. 40) granted plaintiff's motion to compel (Docket No. 34) but only partially granted defendants' own motion to compel (Docket No. 36). That Order recognized that both sides prevailed in some sense on their motions and allowed applications to recover their respective discovery motion costs (Docket No. 40, Order of March 31, 2017, at 10). Defendants moved (Docket No. 42) to reconsider this Court's Order (Docket No. 40), delaying these fee applications. The reconsideration Order (Docket No. 48, Order of June 23, 2017), allowed the parties to move to recover their reasonable motion costs where they prevailed in their respective motions (id. at 16-17). Familiarity with this Order (and prior discovery proceedings held herein) is presumed.

         Factoring in time for filing any objections to the June 23, 2017, Order (see Fed.R.Civ.P. 72(a)), the fee application motions were due by July 10, 2017, with responses to the opponent's application due by July 17, 2017, and the application motions deemed submitted (without oral argument) on July 17, 2017 (Docket No. 49).


         This is an employment discrimination action wherein plaintiff alleges violations of Title VII, the Civil Rights Act of 1964, the Equal Pay Act, 42 U.S.C. § 1981, and the New York State Human Rights Law, see Black v. Buffalo Meat Serv., No. 15CV49, 2016 U.S. Dist. LEXIS 164441, at *2-4 (W.D.N.Y. Nov. 29, 2016) (Scott, Mag. J.) (Docket No. 32, Order of Nov. 29, 2016, at 2-3). Plaintiff filed a series of motions to compel (Docket Nos 23, 28, 34) as well as defendants' cross-motion to compel (Docket No. 36). The present fee application arises from the last series of motions (plaintiff's motion, Docket No. 34, as well as from defendants' cross-motion, Docket No. 36, to compel and defense motion for reconsideration, Docket No. 42).

         Plaintiff's Third Motion to Compel (No. 34)

         Pertinent to the present fee applications, plaintiff sought compliance with this Court's August 16, 2016, and November 29, 2016, Orders (Docket Nos. 27, 32) and production of all documents responsive to her Request Nos. 12 and 13 (Docket No. 34), seeking tax and payroll records from January 2016 to present (Docket No. 34, Pl. Atty. Decl. ¶ 26).

         Defendants renewed their response that they produced, among 500 pages of documents already produced, materials responsive to plaintiff's outstanding demands (Docket No. 36, Defs. Memo. at 7-9). Defense counsel's affidavit stated that defendants supplemented tax and payroll documents from the period of plaintiff's tenure, with over 2, 700 pages of materials (Docket No. 37, Defs. Atty. Aff. ¶¶ 36, 38, 39).

         Defendants' Cross-Motion (No. 36)

         In addition to responding to plaintiff's last motion to compel, defendants cross-moved plaintiff to produce her W-2, tax returns and to execute medical and Social Security authorizations (Docket No. 36). They also wanted plaintiff to schedule her deposition following defense receipt of earnings, tax, and medical records (id.).

         Order of March 31, 2017 (No. 40)

         In the Order of March 31, 2017, this Court granted plaintiff's motion to compel and ordered compliance with the prior Orders while granting in part and denying in part defendants' motion to compel (Docket No. 40, Order of Mar. 31, 2017). Pertinent to the reconsideration motion, this Court held that defendants were to produce tax and payroll records based upon representations that only 500 pages of those records were produced (id. at 6-7). This Court then found that plaintiff need not produce her joint tax returns but only produce W-2 forms instead (id. at 8-9). After extending the Scheduling Order deadlines (id. at 9-10), this Order also set forth briefing for discovery sanctions (id. at 10); this briefing was held in abeyance pending resolution of the present reconsideration motion (Docket No. 43).

         Defendants' Motion for Reconsideration (No. 42)

         Defendants then sought reconsideration of the March 31, 2017, Order (Docket No. 40); seeking denial of plaintiff's motion to compel further production from them of payroll and tax documents (Docket No. 42, Defs. Notice of Motion at 1). They contended that defendants did supplement the 500 pages of production with 2, 700 additional pages of its employees' payroll and tax documents to 2010 (id., Defs. Memo. at 2-3, 4-5). They stated that they noted this supplementation in prior proceedings (Docket No. 27, Order at 15; Docket No. 25, Defs. Memo. at 2; Docket No. 36, Defs. Atty. Aff. ¶¶ 36, 38, 39; Docket No. 30, Defs. Memo. at 1, 2) but this Court disregarded it (see Docket No. 42, Defs. Memo. at 6). They asserted that they produced in supplementation weekly payroll records of all employees (and not merely comparable employees) during plaintiff's employment and their W-2 statements and W-2 summary reports (Docket No. 42, Defs. Memo. at 4-5). Defendants also wanted reconsidered the denial (in part) of their motion to compel plaintiff's redacted tax returns, with defendants seeking disclosure of plaintiff's source of income during the course of this litigation (id. at 9). Defendants also sought redacted tax returns to learn the sources of plaintiff's post-termination income (Docket No. 42, Defs. Notice of Motion at 1).

         Plaintiff countered that there is no motion for reconsideration and, under Rules 59(e) or 60(b), a non-final Order cannot be reconsidered, citing this Court's earlier Order denying reconsideration of plaintiff's motion (Docket No. 44, Pl. Atty. Decl. ¶¶ 12-[2d] 12; see Docket No. 32, Order at 14; Black, supra, 2016 U.S. Dist. LEXIS 164441, at *19-20; Docket No. 33, 3d Am. Scheduling Order at 14). She argued that defendants still had not produced payroll or tax records after 2010 (Docket No 44, Pl. Atty. Decl. ΒΆΒΆ 20, 22-23); defendants supplemented with records only during the period of plaintiff's employment, up to 2010 and merely repeated arguments that failed in three ...

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