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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Steven Reiss,

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Plaintiff,

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vs.
Karl Stansel, et al.,

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Defendants.

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No. CV 09-1760-PHX-RCB
O R D E R

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Introduction
Currently there are three matters pending before the court,

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all of which pertain to defendants’ recent service upon plaintiff

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of supplemental discovery responses.

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Notices of Service of those responses, plaintiff filed three

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separate documents, which he styles as “Response[s] in

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Opposition[]” to defendants’ various supplemental discovery

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responses.

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Responses, plaintiff “requests” court orders “suppressing”

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defendants’ supplemental discovery responses; and “precluding

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[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.

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(Doc. 128) at 1; Resps. (Docs. 132 and 134) at 2.

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defendants’ first filed Notice (Doc. 126), plaintiff also “requests

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the Court enjoin Defendants from attempting to submit any new or

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supplemental discovery that was not disclosed prior to the January

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18, 2011 close of discovery.”

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added).

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As to

Reply (Doc. 135) at 2 (emphasis

Given the relief which plaintiff is seeking, the court is

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treating his “Responses in Opposition” as motions.

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least with respect to defendants’ first Notice, the parties seem to

Indeed, at

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be of the same view.

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thereto, defendants filed their own “response[,]” asserting that

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“‘suppression’ of [their] Supplemental Response” as to the

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interrogatories is “unnecessary.”

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13.

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Reply (Doc. 135).

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defendants filed in connection with their supplemental discovery

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disclosures.

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court deems plaintiff’s “Responses in Opposition” to be motions

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because, as explained below, the court is denying plaintiff’s

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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

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Background

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The Rule 16 Scheduling and Discovery Order (“the Rule 16

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Order”) in this case provides, among other things, for the

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completion of discovery, including “supplement[ing] all discovery,

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. . . on or before January 18, 2011.”

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Behrens filed a “Notice of Service of Discovery to Plaintiff”

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pertaining to their “Supplemental Response to Plaintiff’s First

Ord. (Doc. 39) at 2:14 and

On May 24, 2011, defendants Stansel and

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Non-Uniform Interrogatories[.]” Not. (Doc. 126) at 15-16; and at

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22-23 (emphasis in original).

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Plaintiff challenges service of that supplemental discovery

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response on procedural and substantive grounds.

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argues that that supplemental response is untimely given the

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January 18, 2011, discovery cut-off date.

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asserts that defendants are not supplementing their response to his

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first non-uniform interrogatories, but rather they are “completely

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chang[ing] their original response[.]” Id.

Procedurally, he

Substantively, plaintiff

Plaintiff speculates

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that defendants made that asserted “change . . . either because

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[the original response] was false or because it conflicts with

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statements other, [sic] current ICE [United States Immigration and

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Customs Enforcement] and EDC [Eloy Detention Center] staff . . .

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recently made to [him].”

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Id.

Presuming that plaintiff is referring to Interrogatory No. 1,

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defendants explain that on May 11, 2011, they received a letter

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from plaintiff “requesting confirmation of [their] original

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response” to that interrogatory.

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As defendants explain it, after becoming “aware” of and “agree[ing]

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with plaintiff as to the need for “clarification[,]” defendants

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“supplemented their original response” to Interrogatory No. 1.

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at 2:2-3.

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response is “unnecessary[,]” defendants stress that plaintiff

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requested that response, which “clarifi[es]” an issue; hence their

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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

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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.

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2:5-6.

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their response was “appropriate and timely pursuant to Fed. R. Civ.

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P. 26(e), which requires supplementation of interrogatory

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responses.”

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plaintiff believes that their supplemental response to

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Interrogatory No. 1 is “contrary” to their original response, that

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is a “credibility” issue, properly left for trial.

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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

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his letter dated May 6, 2011.

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that it was “neither supplemental nor did it clarify anything.”

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Reply (Doc. 135) at 1.

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supplemental response “seeks to supersede the original[,]” and

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“does not even address the subject of the interrogatory[.]” Id.

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(citation omitted).

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concerned, plaintiff notes, as that letter reflects, that he was

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“merely request[ing] counsel to confirm whether the original

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response to the interrogatory was false[.]”

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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.

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On June 3, 2011, defendants filed another “Notice of Service”

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stating that on May 27, 2011, they had served plaintiff with their

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“Second Supplemental Disclosure Statement[.]” Id. at 1:19.

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that date, June 3, 2011, defendants filed a “Notice of Service”

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upon plaintiff of their “Third Supplemental Disclosure

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Statement[.]”

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Also on

Not. (Doc. 131) at 1:12; and at 1:19.

Plaintiff filed two separate but identical responses to those

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two Notices.

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discovery deadline, those two supplemental disclosure statements

Plaintiff contends that given the January 18, 2011,

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are untimely.

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“requests . . . suppress[ion]” of those two statements, and “an

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Order precluding Defendants from continuing to attempt to re-open

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discovery in this matter.”

As noted at the outset, plaintiff, therefore,

Resps. (Docs. 132 and 134) at 2.

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In the midst of these discovery disputes, after this court

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granted in part and denied in part defendants’ summary judgment

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motion (Doc. 127), on June 2, 2011, the Honorable Edward C. Voss,

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United States Magistrate Judge ordered the withdrawal of the

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reference, indicating “that this matter is now ready for trial.”

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Doc. 129.

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Discussion
I.

Service of Supplemental Discovery Responses
In addition to setting a discovery cutoff date of January 18,

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2011, the Rule 16 Order herein “remind[s]” the parties that it

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“governs and supersedes the ‘30 days before trial’ disclosure

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deadline contained in Fed.R.Civ.P. 26(a)(3).”

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2:16-18, ¶ 6.

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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[.]”

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Id. at 2:18-3:1 (emphasis added).

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the basis for plaintiff’s argument that the court should suppress

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as untimely defendants’ supplemental discovery responses.

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order cannot be read in isolation, however.

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conjunction with Fed. R. Civ. P. 26(e), which governs supplementing

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discovery disclosures and responses.

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states:
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Perhaps those provisions form

That

It must be read in

Subsection (1) of that Rule

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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.

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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
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Thus, because on the record as presently constituted it

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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

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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.
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Proposed Joint Final Pretrial Order

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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.
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Although it is plaintiff pro se’s responsibility to ensure

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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.
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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.
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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).
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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
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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
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For the reasons set forth above, IT IS ORDERED that:

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(1) “Plaintiff’s Response in Opposition to Defendants’

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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.

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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;
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(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;
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(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;
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(4) “Defendants [sic] Motion for Extension of time to File

11 Proposed Joint Pretrial Order” (Doc. 138) is DENIED as moot; and
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(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.
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DATED this 24th day of June, 2011.

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25 Copies to counsel of record and plaintiff pro se
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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RICHARD STEVEN REISS,

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Plaintiff,

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vs.

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KARL STANSEL, et al.,

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Defendants,

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CIV 09-1760 PHX RCB
FINAL PRETRIAL ORDER

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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

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gives this Court jurisdiction:

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(example - Jurisdiction in this case is based on
diversity of citizenship under Title 28
U.S.C. §1332.)

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B.

NATURE OF ACTION.

Provide a concise statement of

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the type of case, the cause of the action, and the relief

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sought:

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(example - This is a products liability case wherein

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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.)

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C.

CONTENTIONS OF THE PARTIES.

With respect to each

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count of the complaint, counterclaim or cross-claim, and to any

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defense, affirmative defense, or the rebuttal of a presumption

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where the burden of proof has shifted, the party having the

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burden of proof shall list the elements or standards that must be

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proved in order for the party to prevail on that claim or

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defense:

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(example - In order to prevail on this products
liability case, the plaintiff, must prove the following
elements...)

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example - In order to defeat this products liability
claim based on the statute of limitations or repose,
the defendant must prove the following elements...

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D.

STIPULATION AND UNCONTESTED FACTS

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E.

CONTESTED ISSUES OF FACT AND LAW (See and refer to

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subpart C above)
F.

LIST OF WITNESSES.

Include or separately attach a

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list(s) of witnesses, identifying each as either plaintiff's or

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defendants' witnesses and indicating whether the witness is a

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fact or expert witness.

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G.

LIST OF EXHIBITS.

Include or separately attach a

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list(s) of numbered exhibits, identifying each as either

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plaintiff's or defendants', with a description of each containing

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sufficient information to identify the exhibit, indicating

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whether there is an objection to its admission and, if so, the

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nature of the objection(s) anticipated.

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The actual exhibits must

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be later marked according to instructions which will be provided

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at the final pre-trial conference.

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H.

LIST OF DEPOSITIONS.

Include or separately attach

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those portions of depositions that will be read at trial by each

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party listed by page and line number, whether there is an

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objection to each passage and, if so, the nature of the

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objection.

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I.

MOTIONS IN LIMINE.

Motions in Limine are intended

to encompass only significant evidentiary issues and are

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generally discouraged.

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shall be filed by

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shall be filed by

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filed without permission of the court.

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deemed submitted without argument.

Such motions, if allowed,
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Any responses
No replies may be

Motions in Limine are

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J.

LIST OF ANY PENDING UNRULED UPON MOTIONS

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K.

PROBABLE LENGTH OF TRIAL

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For a Bench Trial

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L.

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

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shall be simultaneously filed by

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.

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For a Jury Trial
M.

INSTRUCTIONS.

The parties shall seek to stipulate

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to jury instructions and any stipulated jury instructions shall

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be filed

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which are not agreed upon shall include citation to authority

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which shall not exceed one page per instruction and shall be

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filed by

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any non-agreed upon instruction shall include citation to

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Instructions

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Objections to

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authority which shall not exceed one page per instruction and may

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be filed by

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N.

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VOIR DIRE QUESTIONS.

Any proposed voir dire questions

shall be filed by

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O.

CERTIFICATIONS.

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Plaintiff, pro se, and defense counsel

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in this action do hereby certify and acknowledge the

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following:

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1.

All discovery has been completed.

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2.

The identity of each witness has been disclosed

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to plaintiff, pro se, and defense counsel.

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3.

Each exhibit listed herein (a) is in existence;

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and (b) has been disclosed and shown to plaintiff, pro se, and

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defense counsel.

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APPROVED AS TO FORM AND CONTENT:

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Plaintiff, pro se

Attorney for Defendants

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THIS JOINT PRETRIAL ORDER IS HEREBY APPROVED AND TRIAL IS

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SET FOR

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Sixth Floor, Sandra Day O'Connor United States Courthouse, 401 W.

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Washington St., Phoenix, Arizona; COUNSEL SHALL APPEAR AT 8:30

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A.M.

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DATED this

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day of

AT 9:00 A.M., COURTROOM 606,

, 2011.

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ROBERT C. BROOMFIELD
SENIOR UNITED STATES DISTRICT JUDGE

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