United States District Court, District of Columbia
JERICHO BAPTIST CHURCH MINISTRIES, INC. DISTRICT OF COLUMBIA, Plaintiff,
JERICHO BAPTIST CHURCH MINISTRIES, INC. MARYLAND, et al., Defendants.
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
the court are two discovery-related motions filed by
Plaintiff Jericho Baptist Church Ministries, Inc. (D.C.). The
first asks the court to “reopen and enlarge” the
time for discovery (“Motion to Enlarge Time”).
See Pl.'s Mot. to Reopen & Enlarge Disc.,
ECF No. 46 [hereinafter Pl.'s Mot. to Enlarge]. The
second seeks to compel production of records from a lawyer,
Erika Cole (“Motion to Compel”). See
Pl.'s Mot. to Compel Erika Cole's Production of
Docs., ECF No. 50 [hereinafter Mot. to Compel]. Both Motions
Motion to Enlarge Time. The court set May 30, 2018,
as the deadline for all fact discovery other than
“discovery related to bank/financial transactions,
” and June 15, 2018, as the deadline for all fact
“[d]iscovery related to bank/financial
transactions.” See Order, ECF No. 45
[hereinafter Revised Scheduling Order], ¶ I.B-C.
Plaintiff's Motion to Enlarge Time is premised on the
production of 1, 000 pages of emails from Defendants Magruder
and Killen on May 18, 2018. See Pl.'s Mot. to
Enlarge at 8; see also Id. at 7 (asserting that
“Defendants' recent production of documents has
opened an evidentiary Pandora's
Box”). As this discovery does not relate to
“bank/financial transactions, ” the deadline to
file any motion to extend time was May 30, 2018. Plaintiff
did not, however, file the Motion to Enlarge Time until June
8, 2018. See Pl.'s Mot. to Enlarge. It is
therefore untimely. See Revised Scheduling Order
¶ II (“A request for an extension of time made
after the discovery deadline will be considered
untimely.”). With Plaintiff having missed the deadline
to extend the relevant discovery deadline, it must establish
“excusable neglect” for its failure to move in a
timely manner. See Fed. R. Civ. P. 6(b)(1)(B). This
it has failed to do. Indeed, Plaintiff offers no reason for
its late filing, let alone excusable neglect for doing so.
For that reason alone, Plaintiff's Motion to Enlarge Time
the court were to treat Plaintiff's request for
additional time to conduct discovery as timely filed,
Plaintiff has not established “good cause” to
modify the scheduling order. See Fed. R. Civ. P.
16(b)(4); LCvR 16.4(a). “In deciding whether good cause
exists under Rules 16(b) and 16.4 to amend a scheduling
order, the Court primarily considers the diligence of the
party in seeking discovery before the deadline.”
Barnes v. District of Columbia, 289 F.R.D. 1, 7
(D.D.C. 2012). Here, Plaintiff fails that test. Discovery in
this matter commenced on February 8, 2017, and the court
extended the original discovery deadline of August 7, 2017,
multiple times by nearly a year. See Order, ECF No.
29; Minute Entry, Aug. 10, 2017; Order, ECF No. 35; Order,
ECF No. 44. This court has closely monitored the parties'
discovery efforts since the hearing held on December 18,
2017, holding an in-chambers discovery conference in January
2018 and multiple interim telephonic conferences since then.
The court therefore is intimately familiar with the degree of
diligence exercised by Plaintiff. It has not been sufficient.
Plaintiff does not dispute that, as of December 15, 2017, it
had received and had reviewed screenshots of 5, 000 emails
from Defendant Killen. See Status Report, ECF No.
42. Plaintiff also received screenshots of Defendant
Magruder's emails on March 9, 2018. See
Defs.' Opp'n to Pl.'s Mot. to Reopen &
Enlarge Disc., ECF No. 49, Ex. S, ECF No. 49-1. Plaintiff did
not, however, raise any questions about the sufficiency of
screenshot email production until the telephone conference
held on April 19, 2018- over four months after receiving and
reviewing Killen's emails and more than a month after
receiving Magruder's emails. On the April 19th call, the
court left it to the parties to resolve any disputes about
email production, but reminded Plaintiff that the court had
set a hard deadline of May 30, 2018, for
non-banking/financial fact discovery. Yet, Plaintiff's
first actual motion for relief on the issue of email
production did not come until after the deadline, when it
filed the Motion to Enlarge Time on June 8, 2018. As the
foregoing timeline shows, Plaintiff has had ample opportunity
to challenge the adequacy of Defendant Killen's and
Defendant Magruder's email productions, but did not do
so. The court will not reward Plaintiff's lack of
diligence by extending the discovery deadline.
Motion to Compel. Plaintiff's Motion to Compel
is denied for a simple reason-it is not directed at the right
person. According to Plaintiff, it served a Rule 45 subpoena
on Erika Cole, a lawyer, seeking records relating to her
representation of Defendant Jericho Baptist Church
Ministries, Inc. (MD). See Pl.'s Mot. to Compel at
1, 7. Apparently, Ms. Cole has asserted the attorney-client
privilege as to her communications with Defendant. See
Id. Rule 45(d)(2)(B)(i) provides that, “[a]t any
time, on notice to the commanded person, the serving
party may move the court for the district where compliance is
required for an order compelling production or
inspection.” Fed.R.Civ.P. 45(d)(2)(B)(i) (emphasis
added). Here, in an effort to enforce its subpoena to Ms.
Cole, Plaintiff has not given notice to the “commanded
person, ” i.e., Ms. Cole. Rather, it moves for
“an order compelling Defendant Jericho Baptist
Church Ministries, Inc. (Maryland) . . . to produce documents
withheld on the grounds of attorney-client privilege.”
Pl.'s Mot. to Compel at 1 (emphasis added). As Defendant
is not the proper “commanded person, ” Plaintiffs
Motion to Compel is denied without prejudice.
 In its reply brief, Plaintiff asserts
additional reasons for extending the discovery deadline.
See generally Pl.'s Reply to Defs.'
Opp'n to Pl.'s Mot. to Reopen & Enlarge Disc.,
ECF No. 53, at 3-5. As Plaintiff raised these reasons for the
first time in its reply brief, the court does not consider
them. See Nytes v. Trustify, Inc., 297 F.Supp.3d
191, 202 (D.D.C. 2018) (“Judges in this District have
repeatedly held that arguments may not be raised for the
first time in a party's reply.”); Aleutian
Pribilof Islands Ass'n v. Kempthorne, 537 F.Supp.2d
1, 12 n.5 (D.D.C. 2008) (“[I]t is a well-settled
prudential doctrine that courts generally will not entertain
new arguments first raised in a reply brief.” (citing
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
196 (D.C. Cir. 1992)). Accordingly, the court grants
Defendant's Motion to Strike Plaintiff's Reply Brief,
ECF No. 54, but only to the extent Defendant asks the court
to strike the arguments raised by Plaintiff for the first
time in its Reply.
 Ms. Cole, however, disputes proper
service. See Def.'s Opp'n to Pl.'s Mot.
to Compel, ECF ...