Graf et al v. Morgan et al

Filing 95

ORDER denying plaintiffs' 68 motion to amend pretrial disclosures, trial witness list and trial exhibit list, and denying plaintiffs' 73 motion for sanctions. Signed by Judge Callie V. S. Granade on 3/13/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL SCOTT GRAF and
PAULA GRAF,
Plaintiffs,
v.
ROBERT LANIER MORGAN; et al.,
Defendants

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CIVIL ACTION NO. 11-0064-CG-N

ORDER
This matter is before the court on plaintiffs’ motion to amend pretrial
disclosures, trial witness list and trial exhibit list (Doc. 68); defendants’ opposition
thereto (Doc. 69); plaintiffs’ motion for sanctions (Doc. 73); and defendants’
opposition thereto (Doc. 92). For the reasons explained below, the court finds that
plaintiffs’ motions should be denied.
Plaintiffs seek to amend the pretrial disclosures, trial witness list and trial
exhibit list to include Pat Reichley as a witness as well as the audio recording of a
911 call placed by Mr. Reichley. Plaintiffs also move for sanctions, pursuant to Rule
37(c) for defendants’ failure to disclose and supplement discovery responses to
identify Reichley and produce his 911 recording. However, the court finds that
neither relief is appropriate under the circumstances.
While leave to amend under Rule 15(a) may be freely given, leave to amend
after a scheduling order deadline will only be given upon a showing of “good cause”

under Rule 16(b). Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir.
1998). “Otherwise, scheduling order deadlines would be ‘meaningless’ and the good
cause requirement articulated by Rule 16(b) would effectively be read out of the
Federal Rules of Civil Procedure.” Anderson v. Board of School Comm’rs of Mobile
County, AL, 78 F.Supp.2d 1266,1269 (S.D. Ala. 1999). This “good cause standard...
precludes modification of a scheduling order deadline unless it cannot ‘be met
despite the diligence of the party seeking the extension.’” Id. (citations omitted).
As to the sanctions sought, Federal Rule of Civil Procedure 37(c), provides in
pertinent part:
(1) Failure to Disclose or Supplement. If a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the
party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was
substantially justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an opportunity to be
heard:
(A) may order payment of the reasonable expenses, including
attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).
FED. R. CIV. P. 37(c)(1). Plaintiffs’ motion to amend and motion for sanctions are
generally based on the same factual assertions and the court will discuss the support
for both motions together.
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While the court agrees that Reichley may be an important witness for plaintiffs,
plaintiffs’ predicament is the result of their own failure to diligently pursue discovery
in this case. The court is aware that plaintiffs’ failings may have been partially due to
plaintiffs having changed counsel several times during this litigation (a total of five
attorneys have represented plaintiffs) and to plaintiffs having represented themselves
at times during this litigation. However, plaintiffs voluntarily chose their attorneys as
their representatives, chose to fire and hire those attorneys and chose to proceed pro
se at times. Therefore, plaintiffs cannot escape any deficiencies of their case by
claiming negligence in the acts or omissions of their attorneys or by asserting a lack of
knowledge of the rules. See Link v. Wabash Railroad Co., 370 U.S. 626 (1962); see also
Barger v. City of Cartersville, 348 F.3d 1289, 1295 (11th Cir. 2003) (“[I]f an attorney's
conduct falls substantially below what is reasonable under the circumstances, the
client's remedy is against the attorney in a suit for malpractice.” quoting Link supra).
Pro se plaintiffs are “subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure,” the same as any other litigants.1 Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989).

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The Eleventh Circuit has stated:
Courts do and should show a leniency to pro se litigants not enjoyed by
those with the benefit of a legal education. See, e.g., Powell v. Lennon,
914 F.2d 1459, 1463 (11th Cir.1990). Yet even in the case of pro se
litigants this leniency does not give a court license to serve as de facto
counsel for a party, see Hall v. Bellmon, 935 F.2d 1106, 1109 (10th
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In addition, the court notes that extensions in scheduling deadlines have been
granted in this case to accommodate plaintiffs having obtained new counsel or to allow
the parties additional time because discovery or communication between the parties
had been delayed due to plaintiffs’ counsel having withdrawn from the case. (Docs. 22,
23, 32, 34). It is also notable that plaintiffs repeatedly failed to comply with their own
discovery obligations, making it difficult for defendants to obtain plaintiffs’ medical
records and an itemization of plaintiffs’ damage claim.
Plaintiffs contend that defendants failed to disclose and supplement discovery
responses to identify Reichley and produce his 911 recording, but have not shown why
they could not have obtained the information themselves if they had diligently
pursued discovery. Defendants did not have any knowledge of Reichley or the 911 call
until they received the response from their third party subpoena to Baldwin County
911. (Doc. 92-4). The response from Baldwin County did not name Mr. Reichley, but
listed phone numbers of persons who had called in around the date and time of the
accident. (Doc. 92-4, p. 6). It was only through defendants’ investigation that
defendants ultimately discovered Mr. Reichley had called 911 concerning the incident
at issue in this case. Plaintiff chose not to subpoena any third parties.

Cir.1991), or to rewrite an otherwise deficient pleading in order to
sustain an action, see Pontier v. City of Clearwater, 881 F.Supp. 1565,
1568 (M.D.Fla.1995).
GJR Investments Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998).
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Plaintiffs point to the initial disclosures and plaintiffs’ discovery requests and
contend that defendants should have supplemented their responses to include
information about Mr. Reichley. Defendants dispute that supplementation was
appropriate in these circumstances; but even if defendants should have supplemented
their responses, defendants had objected to the discovery requests on the basis of work
product privilege. Defendants neither challenged those objections nor filed any
motions to compel. Even after plaintiffs learned that there were relevant 911 calls,
plaintiffs still neglected to subpoena the information from Baldwin County 911, failed
to specifically request the information from defendants, and did not move to compel
production.
Plaintiffs report that on September 9, 2011, a paralegal for plaintiffs’ counsel
sent an email to a paralegal employed by defendants’ counsel requesting that they
provide “copies of any and all documents that you receive pursuant to the subpoenas
you have issued to non-parties regarding the above referenced matter.” (Doc. 73-2).
Plaintiff did not serve any formal document request specifically seeking non-party
subpoena information. Defendants’ counsel contends that they understood the email
to be requesting documents that were currently being obtained, not 911 information
that is routinely subpoenaed at the beginning of the case and had already been
received. Defendants state that they were unaware that plaintiffs had not already
obtained the 911 information. At this point in the litigation, defendants had already
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deposed another 911 caller, Rebecca Gaines, whose identity was tracked down from
the documents received from Baldwin County 911. (Doc. 69-4 – Gaines Depo. dated
Aug. 22, 2011). Thus plaintiffs were clearly aware of the existence of 911 information.
In response to plaintiffs’ email, defense counsel provided defendants with a disk
containing documents and a cover letter, dated September 13, 2011, stating that “Per
your request, I am enclosing a disk containing medical records received in response to
subpoenas issued by Defendants.” (Doc. 73-3). The cover letter then went on to list 15
medical record documents that were provided. Defendants thought their response
fully complied with plaintiffs’ request and defendants did not respond with any
objection, additional request, or motion to compel. Under the circumstances, the court
finds that even if defendants’ production of requested documents was deficient,
defendants’ actions were substantially justified.
Substantial justification requires justification to a degree that could
satisfy a reasonable person that parties could differ as to whether the
party was required to comply with the disclosure request. The
proponent’s position must have a reasonable basis in law and fact. The
test is satisfied if there is [a] genuine dispute concerning compliance.
Chapple v. Alabama, 174 F.R.D. 698, 701 (M.D. Ala. 1997)(quoting Nguyen v. IBP,
Inc., 162 F.R.D. 675, 680 (D. Kan 1995)). Here, the court finds it was reasonable for
defendants to believe that they had complied with plaintiffs’ request. Moreover,
defendants were simply being accommodating in providing any responsw to the
informal request. Additionally, defendants maintain that the information regarding
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Reichley was privileged attorney work product, since it resulted from their own
investigation. Furthermore, the non-disclosure was arguably harmless, since
plaintiffs were already aware that there was 911 caller information and could have
sought the information themselves.
After review of all of the circumstances of this case, the court finds that
plaintiffs’ motions to amend and for sanctions should be denied. The court notes that
defendants have requested attorneys fees and costs for having to respond to these
motions. (Doc. 92, p. 30). However, the court finds it was not completely unreasonable
for plaintiffs’ to move to amend and for sanctions and finds that the motions were not
so baseless as to warrant attorneys fees and costs.
CONCLUSION
For the reasons stated above, plaintiffs’ motion to amend pretrial disclosures,
trial witness list and trial exhibit list (Doc. 68) and plaintiffs’ motion for sanctions
(Doc. 73) are DENIED. The court declines to award attorneys fees and costs
regarding these motions.
DONE and ORDERED this 13th day of March, 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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