                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
JERICHO BAPTIST CHURCH                    )
MINISTRIES, INC. (DISTRICT OF             )
COLUMBIA),                                )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                   Case No. 1:16-cv-00647 (APM)
                                          )
JERICHO BAPTIST CHURCH                    )
MINISTRIES, INC. (MARYLAND), et al.,      )
                                          )
      Defendants.                         )
_________________________________________ )

                          MEMORANDUM OPINION AND ORDER

       Before 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 are denied.

       1.      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”). 1 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 is denied.

         Even if 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


1
  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.

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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.

           2.       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). 2 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



2
    Ms. Cole, however, disputes proper service. See Def.’s Opp’n to Pl.’s Mot. to Compel, ECF No. 52, at 3 n.3.

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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,”

Plaintiff’s Motion to Compel is denied without prejudice.




Dated: August 2, 2018                               Amit P. Mehta
                                                    United States District Judge




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