Murey v. The City of Chickasaw Alabama et al
Filing
130
Order GRANTING in part and DENYING in part 122 MOTION for Discovery to be Reopened for Limited Purpose as set out. It is ORDERED that this limited discovery shall be completed on or before 11/1/2019; and the parties have leave of Court to file, on or before 11/8/2019, supplemental briefs as set out. The Court will take the summary judgment under submission upon receipt of the parties supplemental briefs on 11/8/2019. Signed by Chief Judge Kristi K. DuBose on 10/21/2019. (nah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARLOS FERNANDO REIXACH MUREY,
as Administrator for the Estate of Carlos
Lens Fernandez, a/k/a Carlos Lens,
Plaintiff,
v.
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)
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THE CITY OF CHICKASAW, et. al.,
Defendants.
CIVIL ACTION: 1:18-00275-KD-N
ORDER
This matter is before the Court on Plaintiff’s Motion to Reopen Discovery for Limited
Purpose (Doc. 122) and Defendants’ Response to Plaintiff’s Motion to Reopen Discovery for
Limited Purpose (Doc. 129).
I.
Relevant Background
Pursuant to the Rule 16(b) scheduling order, discovery closed on July 15, 2019 (Doc. 55).
Magistrate Judge Nelson held a hearing August 30, 2019 to discuss discovery related issues.
(Doc 102). Plaintiff believed, based on information from Defendants, that Defendant City of
Chickasaw recorded radio and telephone conversations and recorded the dispatch room at the
Chickasaw County Jail. (Doc. 122 at 1). On October 4, 2019, Defendants stated Mobile County
EMS maintained those records and not Chickasaw. (Doc. 119 at 21). On October 8, 2019,
Plaintiff moved to reopen discovery to depose witnesses regarding the recordings. (Doc. 122).
II.
Standard of Review
Federal Rules of Civil Procedure Rule 16(b) states that a district court must issue a
scheduling order which limits the time to complete discovery. Fed. R. Civ. P. 16(b)(3)(A). This
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schedule can be modified only upon a showing of good cause and with the court’s consent. Fed.
R. Civ. P. 16(b)(4). Rule 6(b) states when an act must be done within a specified time period, the
court may extend that time period for good cause. Ashmore v. Sec’y, Dep’t of Transp., 503
Fed.Appx. 683, 685-86 (11th Cir. 2013) (citing Fed. R. Civ. P. 6(b)(1)(A)). Good cause is
established if the party can show the schedule could not be met despite the party’s diligence.
Oravec v. Sunny isles Luxury Ventures, L.C., 527 F.3d 1218, 1232 (11th Cir. 2008). In
Ashmore, the Eleventh Circuit used this standard to determine if a motion to reopen discovery
should be granted. 503 Fed.Appx. at 686.
Rule 6(b)(1)(B) also states that a court may, for good cause, extend the time period to file
a motion beyond the deadline if the party failed to act because of excusable neglect. The
following factors are considered to determine if there was excusable neglect: (1) the danger of
prejudice to the nonmovant; (2) the length of delay and its potential impact on judicial
proceedings; (3) the reason for the delay, including whether it was within the reasonable control
of the movant; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
A motion to reopen discovery on an issue currently before the court at the summary
judgment stage is evaluated under Federal Rule of Civil Procedure 56(f). Davken, Inc. v. City of
Daytona Beach Shores, 2006 WL 1232819, *4 (M.D. Fla. May 5, 2006). This rule provides “the
Court may refuse an application for summary judgment or may order a continuance to permit
affidavits to be obtained or depositions to be taken or discovery be had if it should appear from
the affidavits of the party opposing the summary judgment motion that the party cannot present
by affidavit facts essential to justify the party’s opposition to the motion.” Id. (citing Fed. R. Civ.
P. 56(f)). Courts look to whether the moving party was diligent during the discovery period in
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deciding whether a to grant a 56(f) motion. Olds v. Cracker Barrel Old Country Store, Inc., 2015
WL 13776588, *2 (N.D. Ga. April 2, 2015).
III.
Items for Limited Discovery
A.
Mobile County 911
Murey seeks to reopen discovery for the limited purpose of: (1) taking the deposition of,
and obtaining records from, non-party Mobile County 911, and (2) obtaining records from
Defendant City of Chickasaw regarding the policies and procedures for retaining video and audio
recordings of police department business. (Doc. 122 at 1). Defendants do not object to discovery
for the limited purpose of allowing Murey to subpoena Mobile County 911 for the call transcript
received the morning of May 27, 2016. Upon consideration, it is ORDERED that discovery is
reopened for the limited purpose of obtaining the Mobile County 911 transcript.
However, Defendants object to reopening discovery to allow Murey to take a deposition
of a representative from Mobile County 911. (Doc. 129 at 1). Upon review, Murey does not
specify what he seeks specifically, only referencing “records from Mobile County 911” broadly.
(Id.). As such, it is ORDERED that discovery is limited to Murey issuing a subpoena to Mobile
County 911 for the production of the May 27, 2016 telephone transcript. (Doc. 129 at 1).
B.
City of Chickasaw Policies and Procedures for Record Retention
Murey seeks to reopen discovery as to Defendant City of Chickasaw’s policies and
procedures for preserving video and audio recording because “the City of Chickasaw now claims
it never recorded radio or telephone conversations, but that Mobile County EMS maintained
those records for the defendant. (Doc. 122 at 3 (referencing Doc. 119 at 21)). Murey states this
information was not sought before the close of discovery because he was unaware of a need for
this information until such a time.
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In response, Defendants assert they provided Murey with copies of City of Chickasaw
policies and procedures and that Murey had the opportunity to ask Defendant Reynolds about
said policies during Reynolds’ deposition. (Doc. 129 at 2). Both Defendants production of
policies and procedures and Reynolds’ deposition occurred before Defendants allegedly changed
their position regarding audio and video recordings. (Doc. 129 at 2).
Upon consideration, the Court does not find sufficient grounds to reopen discovery as to
these materials. As such, Plaintiff’s motion to reopen discovery is DENIED as to the City of
Chickasaw’s policies and procedures as to the retention of records.
V.
Conclusion
It is ORDERED that Plaintiff’s Motion for Discovery (Doc. 122) is GRANTED in part
and DENIED in part as set forth supra. No further discovery shall be permitted beyond that
specified in this order. It is ORDERED that this limited discovery shall be completed on or
before November 1, 2019; and the parties have leave of Court to file, on or before
November 8, 2019, supplemental briefs (not to exceed 10 pages) addressing this discovery
as it relates to their summary judgment contentions.
Counsel is advised that this limited discovery shall not affect the currently scheduled
final pretrial conference or trial setting. (Doc. 24).
The Court will take the summary judgment under submission upon receipt of the parties
supplemental briefs on November 8, 2019.
DONE and ORDERED this the 21st day of October 2019.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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