Riess v. Cordero et al

Filing 139

ORDER, Plaintiff's Response in Opposition to Defendants' Supplemental Response to Plaintiff's First Non-Uniform Interrogatories 128 , which the court deems to be a motion to suppress, is DENIED without prejudice; Plaintiff's Resp onse in Opposition to Defendants' Second Supplemental Disclosure Statement 132 , which the court deems to be a motion to suppress, is DENIED without prejudice; Plaintiff's Response in Opposition to Defendants' Third Supplemental Discl osure Statement 134 , which the court deems to be a motion to suppress, is DENIED without prejudice; Defendants [sic] Motion for Extension of time to File Proposed Joint Pretrial Order 138 is DENIED as moot; and the parties shall lodge a Proposed Joint Final Pretrial Order in accordance herewith by no later than 6 weeks from the filing date of this order. Signed by Judge Robert C Broomfield on 6/24/11. (REW)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Richard Steven Reiss, 13 Plaintiff, 14 15 vs. Karl Stansel, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 09-1760-PHX-RCB O R D E R 17 18 19 Introduction Currently there are three matters pending before the court, 20 all of which pertain to defendants’ recent service upon plaintiff 21 of supplemental discovery responses. 22 Notices of Service of those responses, plaintiff filed three 23 separate documents, which he styles as “Response[s] in 24 Opposition[]” to defendants’ various supplemental discovery 25 responses. 26 Responses, plaintiff “requests” court orders “suppressing” 27 defendants’ supplemental discovery responses; and “precluding 28 [them] from attempting to re-open discovery in this matter.” After defendants filed their Resps. (Docs. 128; 132 and 134). In each of these Resp. 1 (Doc. 128) at 1; Resps. (Docs. 132 and 134) at 2. 2 defendants’ first filed Notice (Doc. 126), plaintiff also “requests 3 the Court enjoin Defendants from attempting to submit any new or 4 supplemental discovery that was not disclosed prior to the January 5 18, 2011 close of discovery.” 6 added). 7 As to Reply (Doc. 135) at 2 (emphasis Given the relief which plaintiff is seeking, the court is 8 treating his “Responses in Opposition” as motions. 9 least with respect to defendants’ first Notice, the parties seem to Indeed, at 10 be of the same view. 11 thereto, defendants filed their own “response[,]” asserting that 12 “‘suppression’ of [their] Supplemental Response” as to the 13 interrogatories is “unnecessary.” 14 13. 15 Reply (Doc. 135). 16 defendants filed in connection with their supplemental discovery 17 disclosures. 18 court deems plaintiff’s “Responses in Opposition” to be motions 19 because, as explained below, the court is denying plaintiff’s 20 requested relief. As to that Notice and plaintiff’s “Response” Defs’ Resp. (Doc. 133) at 2:12- Plaintiff, in turn, filed a “Reply” to that Response. See To be sure, that is the only “Response” Even so, there is no prejudice to defendants if the 21 Background 22 The Rule 16 Scheduling and Discovery Order (“the Rule 16 23 Order”) in this case provides, among other things, for the 24 completion of discovery, including “supplement[ing] all discovery, 25 . . . on or before January 18, 2011.” 26 16 (emphases in original). 27 Behrens filed a “Notice of Service of Discovery to Plaintiff” 28 pertaining to their “Supplemental Response to Plaintiff’s First Ord. (Doc. 39) at 2:14 and On May 24, 2011, defendants Stansel and -2- 1 Non-Uniform Interrogatories[.]” Not. (Doc. 126) at 15-16; and at 2 22-23 (emphasis in original). 3 Plaintiff challenges service of that supplemental discovery 4 response on procedural and substantive grounds. 5 argues that that supplemental response is untimely given the 6 January 18, 2011, discovery cut-off date. 7 asserts that defendants are not supplementing their response to his 8 first non-uniform interrogatories, but rather they are “completely 9 chang[ing] their original response[.]” Id. Procedurally, he Substantively, plaintiff Plaintiff speculates 10 that defendants made that asserted “change . . . either because 11 [the original response] was false or because it conflicts with 12 statements other, [sic] current ICE [United States Immigration and 13 Customs Enforcement] and EDC [Eloy Detention Center] staff . . . 14 recently made to [him].” 15 Id. Presuming that plaintiff is referring to Interrogatory No. 1, 16 defendants explain that on May 11, 2011, they received a letter 17 from plaintiff “requesting confirmation of [their] original 18 response” to that interrogatory. 19 As defendants explain it, after becoming “aware” of and “agree[ing] 20 with plaintiff as to the need for “clarification[,]” defendants 21 “supplemented their original response” to Interrogatory No. 1. 22 at 2:2-3. 23 response is “unnecessary[,]” defendants stress that plaintiff 24 requested that response, which “clarifi[es]” an issue; hence their 25 supplemental response was “appropriate.” Resp. (Doc. 133) at 1:27-2:1.1 Id. Arguing that “‘suppression’” of this supplemental Id. at 2:12-13; and at 26 27 28 1 Despite indicating that a copy of plaintiff’s letter is attached to defendants’ response, it is not. Plaintiff did include a copy of that letter though as exhibit C to his reply. See Reply (Doc. 135), exh. C thereto. -3- 1 2:5-6. 2 their response was “appropriate and timely pursuant to Fed. R. Civ. 3 P. 26(e), which requires supplementation of interrogatory 4 responses.” 5 plaintiff believes that their supplemental response to 6 Interrogatory No. 1 is “contrary” to their original response, that 7 is a “credibility” issue, properly left for trial. 8 9 Defendants also correctly point out that supplementation of Id. at 2:608. Lastly, defendants contend that if Id. at 2:9-10. In his reply, plaintiff takes issue with defendants’ characterization of both their supplemental discovery response and 10 his letter dated May 6, 2011. 11 that it was “neither supplemental nor did it clarify anything.” 12 Reply (Doc. 135) at 1. 13 supplemental response “seeks to supersede the original[,]” and 14 “does not even address the subject of the interrogatory[.]” Id. 15 (citation omitted). 16 concerned, plaintiff notes, as that letter reflects, that he was 17 “merely request[ing] counsel to confirm whether the original 18 response to the interrogatory was false[.]” 19 C thereto). As to the former, plaintiff asserts Rather, from plaintiff’s standpoint, that Insofar as plaintiff’s May 6th letter is Id. at 2 (citing exh. 20 On June 3, 2011, defendants filed another “Notice of Service” 21 stating that on May 27, 2011, they had served plaintiff with their 22 “Second Supplemental Disclosure Statement[.]” Id. at 1:19. 23 that date, June 3, 2011, defendants filed a “Notice of Service” 24 upon plaintiff of their “Third Supplemental Disclosure 25 Statement[.]” 26 Also on Not. (Doc. 131) at 1:12; and at 1:19. Plaintiff filed two separate but identical responses to those 27 two Notices. 28 discovery deadline, those two supplemental disclosure statements Plaintiff contends that given the January 18, 2011, -4- 1 are untimely. 2 “requests . . . suppress[ion]” of those two statements, and “an 3 Order precluding Defendants from continuing to attempt to re-open 4 discovery in this matter.” As noted at the outset, plaintiff, therefore, Resps. (Docs. 132 and 134) at 2. 5 In the midst of these discovery disputes, after this court 6 granted in part and denied in part defendants’ summary judgment 7 motion (Doc. 127), on June 2, 2011, the Honorable Edward C. Voss, 8 United States Magistrate Judge ordered the withdrawal of the 9 reference, indicating “that this matter is now ready for trial.” 10 Doc. 129. 11 12 13 Discussion I. Service of Supplemental Discovery Responses In addition to setting a discovery cutoff date of January 18, 14 2011, the Rule 16 Order herein “remind[s]” the parties that it 15 “governs and supersedes the ‘30 days before trial’ disclosure 16 deadline contained in Fed.R.Civ.P. 26(a)(3).” 17 2:16-18, ¶ 6. 18 Ord. (Doc. 39) at In relevant part that Rule 16 order thus states: (1) failure to timely supplement Rule 26(a) disclosures, including witnesses and exhibits for trial, (2) failure to timely supplement responses to any valid discovery requests, . . . may result in the exclusion of such evidence at trial[.]” 19 20 21 22 Id. at 2:18-3:1 (emphasis added). 23 the basis for plaintiff’s argument that the court should suppress 24 as untimely defendants’ supplemental discovery responses. 25 order cannot be read in isolation, however. 26 conjunction with Fed. R. Civ. P. 26(e), which governs supplementing 27 discovery disclosures and responses. 28 states: -5- Perhaps those provisions form That It must be read in Subsection (1) of that Rule 1 A party who has made a disclosure under Rule 26(a) – or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure or response: (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. 2 3 4 5 6 7 Fed. R. Civ. P. 26(e)(1) (emphasis added). Especially given the 8 discretionary language of the Rule 16 Order and the mandatory 9 language of Rule 26(e)(1), the court finds that the two are not at 10 odds. Thus, because on the record as presently constituted it 11 appears that defendants were fulfilling their continuing obligation 12 to supplement under Rule 26(e)(1), the court denies plaintiff’s 13 “motions” to suppress as untimely defendants’ supplemental 14 discovery responses. The court denies those motions without 15 prejudice, however. 16 Further, the court agrees with defendants that insofar as 17 plaintiff is challenging the substance of their responses to his 18 First Non-Uniform Interrogatories, plaintiff may explore that issue 19 at trial. 20 II. Proposed Joint Final Pretrial Order 21 Because this action is now ready for trial, the court hereby 22 ORDERS that plaintiff pro se and the attorney or attorneys who will 23 be responsible for the trial of this lawsuit to prepare a proposed 24 Joint Final Pretrial Order and lodge it with the Clerk of the Court 25 no later than six (6) weeks from the filing date of this order. 26 Although it is plaintiff pro se’s responsibility to ensure 27 that the proposed Joint Final Pretrial Order is properly prepared 28 and timely lodged, defendants shall cooperate with plaintiff pro se -6- 1 to ensure that such Order is properly prepared and timely lodged. 2 That proposed Joint Final Proposed Pretrial Order shall be signed 3 by plaintiff pro se and defense counsel. Plaintiff pro se may 4 authorize defense counsel to sign on his behalf. 5 The content of the proposed Joint Final Pretrial Order shall 6 include, but is not limited to, that prescribed in the form of the 7 proposed Joint Final Pretrial Order attached hereto. 8 Pursuant to Fed. R. Civ. P. 16(d) and 37(c), the court will 9 not allow the parties to modify the Joint Final Pretrial Order or 10 introduce at trial any exhibits, witnesses, or other information or 11 to make any objections to exhibits that were not previously 12 specified and/or disclosed as directed by the Court in the Joint 13 Final Pretrial Order, except to prevent manifest injustice. 14 Galdamez v. Potter, 415 F.3d 1015, 1020 (9th Cir. 2005). 15 After the lodging of the signed proposed Joint Final Pretrial 16 Order, at a date to be set by the court, the parties shall 17 participate telephonically in a Pretrial Conference to discuss that 18 Proposed Order. Following that Pretrial Conference, the court will 19 issue the Final Pretrial Order and set a trial date for this 20 action. 21 In light of the foregoing, the court hereby denies as moot 22 “Defendants [sic] Motion for Extension of Time to File Proposed 23 Joint Pretrial Order” (Doc. 138).2 24 For the reasons set forth above, IT IS ORDERED that: 25 (1) “Plaintiff’s Response in Opposition to Defendants’ 26 2 27 28 As an aside, the court observes that this motion was not necessary because, despite what defendants contend, the July 26, 2010, Rule 16 Scheduling and Discovery Order did not include a time frame for filing the Proposed Joint Pretrial Order. -7- 1 Supplemental Response to Plaintiff’s First Non-Uniform 2 Interrogatories” (Doc. 128), which the court deems to be a motion 3 to suppress, is DENIED without prejudice; 4 (2) “Plaintiff’s Response in Opposition to Defendants’ Second 5 Supplemental Disclosure Statement” (Doc. 132), which the court 6 deems to be a motion to suppress, is DENIED without prejudice; 7 (3) “Plaintiff’s Response in Opposition to Defendants’ Third 8 Supplemental Disclosure Statement” (Doc. 134), which the court 9 deems to be a motion to suppress, is DENIED without prejudice; 10 (4) “Defendants [sic] Motion for Extension of time to File 11 Proposed Joint Pretrial Order” (Doc. 138) is DENIED as moot; and 12 (5) the parties shall lodge a Proposed Joint Final Pretrial 13 Order in accordance herewith by no later than six (6) weeks from 14 the filing date of this order. 15 DATED this 24th day of June, 2011. 16 17 18 19 20 21 22 23 24 25 Copies to counsel of record and plaintiff pro se 26 27 28 -8- 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 RICHARD STEVEN REISS, 13 Plaintiff, 14 vs. 15 KARL STANSEL, et al., 16 Defendants, 17 ) ) ) ) ) ) ) ) ) ) ) CIV 09-1760 PHX RCB FINAL PRETRIAL ORDER 18 19 20 21 This Final Pretrial Order supersedes the pleadings and shall govern the trial and further proceedings in this case. A. STATEMENT OF JURISDICTION. Cite the statute(s) which 22 gives this Court jurisdiction: 23 (example - Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C. §1332.) 24 25 B. NATURE OF ACTION. Provide a concise statement of 26 the type of case, the cause of the action, and the relief 27 sought: 28 (example - This is a products liability case wherein 1 the plaintiff seeks damages for personal injuries sustained when he fell from the driver's seat of the forklift. The plaintiff contends that the forklift was defectively designed and manufactured by the defendant and the defects were a producing cause of his injuries and damages.) 2 3 4 5 C. CONTENTIONS OF THE PARTIES. With respect to each 6 count of the complaint, counterclaim or cross-claim, and to any 7 defense, affirmative defense, or the rebuttal of a presumption 8 where the burden of proof has shifted, the party having the 9 burden of proof shall list the elements or standards that must be 10 proved in order for the party to prevail on that claim or 11 defense: 12 (example - In order to prevail on this products liability case, the plaintiff, must prove the following elements...) 13 14 example - In order to defeat this products liability claim based on the statute of limitations or repose, the defendant must prove the following elements... 15 16 D. STIPULATION AND UNCONTESTED FACTS 17 E. CONTESTED ISSUES OF FACT AND LAW (See and refer to 18 19 subpart C above) F. LIST OF WITNESSES. Include or separately attach a 20 list(s) of witnesses, identifying each as either plaintiff's or 21 defendants' witnesses and indicating whether the witness is a 22 fact or expert witness. 23 G. LIST OF EXHIBITS. Include or separately attach a 24 list(s) of numbered exhibits, identifying each as either 25 plaintiff's or defendants', with a description of each containing 26 sufficient information to identify the exhibit, indicating 27 whether there is an objection to its admission and, if so, the 28 nature of the objection(s) anticipated. -2- The actual exhibits must 1 be later marked according to instructions which will be provided 2 at the final pre-trial conference. 3 H. LIST OF DEPOSITIONS. Include or separately attach 4 those portions of depositions that will be read at trial by each 5 party listed by page and line number, whether there is an 6 objection to each passage and, if so, the nature of the 7 objection. 8 9 I. MOTIONS IN LIMINE. Motions in Limine are intended to encompass only significant evidentiary issues and are 10 generally discouraged. 11 shall be filed by 12 shall be filed by 13 filed without permission of the court. 14 deemed submitted without argument. Such motions, if allowed, , 20 , 20 . . Any responses No replies may be Motions in Limine are 15 J. LIST OF ANY PENDING UNRULED UPON MOTIONS 16 K. PROBABLE LENGTH OF TRIAL 17 For a Bench Trial 18 L. PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 19 shall be simultaneously filed by 20 20 . 21 22 , For a Jury Trial M. INSTRUCTIONS. The parties shall seek to stipulate 23 to jury instructions and any stipulated jury instructions shall 24 be filed 25 which are not agreed upon shall include citation to authority 26 which shall not exceed one page per instruction and shall be 27 filed by 28 any non-agreed upon instruction shall include citation to , 20 , 20 -3- . Instructions . Objections to 1 authority which shall not exceed one page per instruction and may 2 be filed by 3 N. 4 , 20 VOIR DIRE QUESTIONS. Any proposed voir dire questions shall be filed by 5 O. CERTIFICATIONS. . , 20 . Plaintiff, pro se, and defense counsel 6 in this action do hereby certify and acknowledge the 7 following: 8 1. All discovery has been completed. 9 2. The identity of each witness has been disclosed 10 to plaintiff, pro se, and defense counsel. 11 3. Each exhibit listed herein (a) is in existence; 12 and (b) has been disclosed and shown to plaintiff, pro se, and 13 defense counsel. 14 APPROVED AS TO FORM AND CONTENT: 15 16 Plaintiff, pro se Attorney for Defendants 17 18 19 THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED AND TRIAL IS 20 SET FOR 21 Sixth Floor, Sandra Day O'Connor United States Courthouse, 401 W. 22 Washington St., Phoenix, Arizona; COUNSEL SHALL APPEAR AT 8:30 23 A.M. 24 DATED this , 20 day of AT 9:00 A.M., COURTROOM 606, , 2011. 25 26 27 28 ROBERT C. BROOMFIELD SENIOR UNITED STATES DISTRICT JUDGE -4-

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