The opinion of the court was delivered by: John M. Facciola U.S. Magistrate Judge
These two related cases were referred to me for discovery. Currently pending and ready for resolution in these consolidated cases are the government's two motions to dismiss or for other sanctions. These motions are both captioned Defendants' Motion for Dismissal or other Sanctions Pursuant to Fed. R. Civ. P. 37(b)(2) and 41(b).*fn1 For the reasons stated below, I recommend that both motions be denied without prejudice while plaintiffs first comply with Rule 6(b) of the Federal Rules of Civil Procedure.
Plaintiffs in these two actions bring these suits against Mike Johanns, the United States Secretary of Agriculture, alleging*fn2 that the United States Department of Agriculture ("USDA") violated the Equal Credit and Opportunity Act of 1972 ("ECOA"), 15 U.S.C. § 1691.*fn3
After a discovery status held on December 4, 2006, this Court stayed all deadlines and ordered (inter alia) that:
1. Plaintiffs' counsel correlate, by January 5, 2007, the documents previously produced in response to Defendants' First Set of Requests for Production of Documents to the specific requests propounded in accordance with Rule 34(b) of the Federal Rules of Civil Procedure.
2. Plaintiffs' counsel correlate, by January 5, 2007, the answers previously given in response to Defendants' First Set of Interrogatories.
3. Defendants' letters to plaintiffs' counsel, dated August 30, 2006, be deemed motions to compel, and plaintiffs' counsel's arguments the opposition thereto.
4. Plaintiffs' counsel shall, by January 5, 2007, either supplement any previously answered requests for production of documents or interrogatories as detailed in the defendants' counsel's August 30, 2006 or show cause in writing by the same date, why he should not be required to do so.
5. Plaintiffs counsel shall provide defendants' counsel with signed copies of his discovery responses.
On January 5, 2007, the deadline for compliance with my Order, nothing happened. On January 12, 2007, defendants, having heard nothing, filed their motions for dismissal. Plaintiffs then filed two motions for extensions of time within which to file their oppositions. While both motions were granted, it is true that, as defendants note, "neither of Plaintiffs' enlargement motions requested additional time to comply with the Court's December 22 order, directing Plaintiffs to supplement their discovery responses." Defendants' Reply Memorandum of Points and Authorities in Support of Their Motion for Dismissal or Other Sanctions Pursuant to Fed R. Civ. P. 37(b)(2) and 41(b)*fn4 at 3. Instead, on February 12, 2007, plaintiffs moved for a third extension of time to file their opposition to defendants' motions and, for the first time, requested an enlargement of time within which to file their supplementary discovery responses, now overdue by more than a month.*fn5
The Court granted that motion and plaintiffs' provided defendants' counsel with supplemental responses to the first set of interrogatories in both cases on February 23, 2007. On that same day, plaintiffs moved for a one day enlargement of time within which to deliver discovery. It was granted and responses to the first set of requests for production of documents were received on February 26, 2007. The Court now realizes, however, that its granting of plaintiffs' motions to enlarge the time within which plaintiffs had to comply with the Court's December 22, 2005 Order was an abuse of discretion.
Since the applications to enlarge the time within which to comply with the Court's order were filed after January 5, 2007, the deadline for complying with the obligations imposed by that Order, they had to be accompanied by a motion establishing that the failure to act in accordance with ...