Motions to Compel Were Both Not Ripe and Not Timely – Plaintiff’s Theory is “Upside Down”

Motions to compel were both “unripe” and “untimely” in Mindtickle, Inc. v. Studio Enterprise, LLC, 2025 WL 3691969 (C.D. Cal. Nov. 27, 2025).  The court also described an inadequate Rule 26(f) “discovery plan.”  Additionally, bilateral agreements could not modify the scheduling order. Mindtickle’s timing theory was deemed “upside down.”

Mindtickle echoes Golat v. Wisconsin State Court System, 2025 WL 2390556 (W.D. Wisc. Aug. 18, 2025), which involved a motion to compel that was not prompt, not ripe, and not complete.  See Half-Baked Motion to Compel Was Not Prompt, Not Ripe, Not Complete, and Not Likely to Succeed (Aug. 22, 2025). In Golat, the court wrote that promptness and lack of ripeness “[a]lthough… typically [are] contradictory concepts, they are not in this case.”

The Mindtickle court struck plaintiff Mindtickle’s parallel motions to compel against defendants Studio Enterprise and University of Savannah.

MINDTICKLE’S MOTIONS WERE UNRIPE

First, the motions were unripe. Both defendants had agreed to provide further discovery responses. Mindtickle admitted that, if they did, it would likely withdraw its motions. The court wrote:

So the only reason then that Plaintiff filed this discovery motion on November 26, 2025—the day before Thanksgiving—is because “the approaching discovery cutoff on January 12, 2026, and the Court’s closed motion schedule require immediate action.” … (emphasis added). In other words, Plaintiff was “compelled,” it says, to file this preemptive motion—when it did—not because there is a ripe dispute, but in case one arises “to ensure compliance with the Federal Rules of Civil Procedure” and the “Local Rules.” Otherwise, Plaintiff speculates, its “rights” might not be “safeguard[ed]” and the “integrity of the discovery process” may not be “preserve[d].”

Mindtickle wrote that one motion was “prophylactic” to ensure compliance with milestones and to “preserve the integrity of the discovery process.”

The Mindtickle court disagreed, writing: “Plaintiff’s understanding of discovery is exactly upside down. Everything about its argument would turn discovery on its head.”

MINDTICKLE’S MOTIONS WERE UNTIMELY

Second, the unripe motions were also untimely under the Scheduling Order.  Mindtickle got off to a slow start, filing its discovery only one month before the fact discovery cutoff. The court stated:

So even if the parties had a discovery dispute, there wouldn’t have been enough time to present a discovery motion because, as the district court foreshadowed, “any party seeking to file a discovery motion must usually initiate meet and confer discussions at least seven (7) weeks before the discovery cut-off.”

The court noted: “It’s all too apparent what happened next.”  Id. at *2.  The parties filed a stipulation extending the deadlines for five months: “The main professed reason for the extension request: ‘the parties [were] working to scheduling mediation and anticipate[d] it occurring in either December 2025 or January 2026.’… But the district court apparently saw through that obfuscation intended to mask the lack of diligence in discovery.”  Instead, it granted a three-month extension.

The court explained what happened next:

Predictably, just about one month later, Plaintiff filed the current motions to compel (on the day before Thanksgiving, no less)—disingenuously demanding “immediate action” to preserve the integrity of the discovery process, to ensure compliance with the federal and local rules of discovery, to safeguard its procedural rights, and so on, and so on. Not because there is a ripe discovery dispute; there probably isn’t one. But just in case, Plaintiff says. And not because Plaintiff or the parties were diligent in pursuing discovery since it opened no later than April 2025; actually, they are quite tardy by any measure. Instead, the reason for the professed urgency is mainly because of this court’s apparently unprecedented “closed motion schedule,” surprisingly blocking out Christmas eve (December 24) and New Year’s eve (January 31) from hearings. [emphasis added].

The court then described an inadequate conference of the parties and incomplete “discovery plan”, with an apparent note of sarcasm:

The false emergency couldn’t possibly be at all because of the parties’ patent failure to conduct a proper Rule 26(f) discovery planning conference in early April 2025. According to the parties’ joint Rule 26(f) report, the parties agreed only to “provide initial disclosures pursuant to the Federal Rules of Civil Procedure,” to “take fact discovery” from each other about their respective claims or defenses, “which may include written discovery and depositions” and possibly “expert discovery.” … Hardly the stuff of a substantive discovery plan. [emphasis added].

For more information on discovery plans, please see An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025).

“ASTONISHING” FAILURE TO FOLLOW COURT PROCEDURES: Rule 26(g)

Third, the court wrote that “if the unripeness and untimeliness of Plaintiff’s motions weren’t enough, they violate the court’s individual discovery procedures. The parties claim—in a joint certification under Rule 26(g) and counsel’s professional and ethical obligations—that the discovery disputes here couldn’t be narrowed or eliminated just by complying with this court’s Standing Civil Discovery Order…. That’s astonishing. Consider what that standing order provides….” Id. at *2 (emphasis added).

The Mindtickle court quoted a number of provisions of its Standing Civil Discovery Order, including ¶11, which stated:

The parties act at their own peril if they agree to ‘pause’ discovery while awaiting decision on a motion or engaging in settlement discussions. Without a court order, the parties cannot expect to enforce any side agreements—even bilateral ones—about staying discovery (in favor of settlement talks or otherwise) if a dispute later arises requiring court intervention before the discovery cutoff.”

SCHEDULING ORDERS

It is not unusual for a missed milestone to have consequences. Missed Milestone:  “This rings the death knell for Plaintiffs’ motion….” (Dec. 10, 2025).  This is an application of the Cinderella principle: “Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.”  Tom Donlon, Silly Lawyer Tricks XXX (americanbar.org)(Mar. 14, 2023).

A Scheduling Order is, after all, an Order. Violating it can have consequences. A Scheduling Order is – – an Order; Sanctions Imposed Despite Consent Request to Modify (Nov. 30,, 2025).

Fed.R.Civ.P. 41(b) has also been used to dismiss a lawsuit for egregious failure to comply with the Federal Rules of Civil Procedure or a court order. Sua Sponte Dismissal Relying in Part on Fed.R.Civ.P. 41(b) (Mar. 15, 2023).

The “Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he [or she] files and tries a case.”  Colonial Carpets, Inc. v. Carpet Fair, Inc.,  36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977) (emphasis added).

As I noted in Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023), however, there are countervailing considerations.  Fed.R.Civ.P. 1 states that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

A Maryland Court  faced a rules-based discovery deadline and wrote:

We conclude this opinion with some general words of explanation and caution. Generally, the Maryland Rules will be applied literally because the satisfactory resolution of disputes through litigation is dependent upon the certainty and timeliness of the process. In many instances, the Rules themselves provide the framework for handling Rule violations, which often involve the exercise of discretion by a court. This is certainly true in the discovery area.

There have been instances, however, including several in reported cases, when a party did not bear the full effect of a Rule violation, especially when the violation was technical, was an excusable instance, not part of a pattern, not wilful, resulted in no prejudice to other parties, did not interfere with the orderly administration of the court’s docket, and the sanction was grossly disproportionate to the nature of the violation.

The point is that the Rules are designed to promote justice, and their literal application will generally do so. Violations will be excused, or a lesser sanction imposed, only in those rare instances in which a literal application, or a heavier sanction, denies justice. Litigation is a dispute resolution process, not a game. Ordinarily, a trial court’s exercise of discretion, including when it literally applies the Rules, will be accorded great deference and upheld.

….

With respect to various types of Rule violations, including timeliness, examples of the two sides of the spectrum are easy to state. For example, as courts move toward electronic filing, lateness may be measured in minutes, not days. If a response is filed 5 minutes late, absent prejudice, a pattern of conduct, wilful conduct, or other extenuating circumstance, one would not expect a motion for sanctions to be filed. If filed, one would expect it would be denied. If, on the other hand, a late response, in context, impacts other counsel’s abilities to represent their clients and to comply with existing orders and schedules, a motion is warranted, and one would expect it to result in appropriate relief. There is a sliding scale in between the two extremes. The facts, summarized at the beginning of this opinion, produced the result reached herein.

This opinion should not be interpreted as condoning the late filing of a response to a request for admissions or any other violation of the Rules. Balanced against the need for enforcement of the rules, however, is the dependence of litigants on the sound exercise of discretion, when permitted by the Rules, to prevent injustice resulting from an insubstantial technicality.

Gonzales v. Boas, 162 Md. App. 344, 363–65, 874 A.2d 491, 502–03 (2005), cert. denied, 388 Md. 405, 879 A.2d 1086 (2005)(emphasis added).

For more on Scheduling Orders, see:

• Defendants’ Violation of Scheduling Order Did Not Support Exclusionary Sanctions (Aug. 23, 2025);
• Sanctions for Failure to Comply With a Scheduling Order That Set Discovery Milestones(May 27, 2025);
• Scheduling Orders Are Mandatory; Vital to Caseload Management; and, Enforced Even Where Parties Got Themselves Into a “Pickle” by Dilatory Efforts to Cooperate (Oct. 10, 2024).

See generally:

• Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023);
• Another Cinderella Situation –Motion Denied as Untimely? (May 31, 2024);
• Plaintiffs Raised This Issue With the Court Too Late (Oct. 7, 2024);
• Dilatory Objections to Corporate Designee Topics Were Too Late; “Blanket” De-Designation Request Was Denied (Oct. 22, 2024);
• Too Busy to Respond to Discovery = Waiver of Objections & Sanctions (Nov. 1, 2024).