Harnage v. Brennan et al

Filing 50

RULING. For the reasons set forth in the attached Ruling, plaintiff's 44 MOTION to Compel Responses to and For Sanctions For Failure to Comply with Discovery re: Plaintiff's Interrogatories Directed to Dr. Wu is GRANTED, in part, and DE NIED, in part, and plaintiff's 45 MOTION for Extension of Time to Complete Discovery and MOTION for Modification of Scheduling Order is GRANTED, in part, for the limited purpose of completing the discovery ordered in this Ruling. It is so ordered. Signed by Judge Sarah A. L. Merriam on 5/9/2018. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
JAMES A. HARNAGE
:
:
v.
:
:
JANINE BRENNAN, et al.
:
:
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Civ. No. 3:16CV01659(AWT)

May 9, 2018

RULING ON PENDING MOTIONS
Pending before the Court are two motions filed by selfrepresented plaintiff James A. Harnage (“plaintiff”). One motion
seeks to compel responses to, and sanctions for defendant Dr.
Wu’s failure to respond to, plaintiff’s interrogatories. [Doc.
#44]. The second motion requests an extension of time to
complete discovery and to modify the current scheduling order.
[Doc. #45]. Defendants have filed an objection to plaintiff’s
motions. [Doc. #49]. For the reasons set forth below, the Court
GRANTS, in part, and DENIES, in part, plaintiff’s motion to
compel [Doc. #44], and GRANTS, in part, plaintiff’s motion for
extension of time to complete discovery and modification of
scheduling order [Doc. #45], for the limited purpose of
completing the discovery ordered herein.

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I.

Relevant Procedural History
The Court presumes familiarity with the general procedural

and factual background of this matter, and outlines the
procedural history only as relevant to the current dispute.
On November 13, 2017, plaintiff filed a “Motion to Expand
Discovery,” which sought to increase the number of
interrogatories he could serve on each defendant. See Doc. #30.
On November 15, 2017, defendants filed an objection to that
motion. [Doc. #31]. On November 20, 2017, Judge Thompson
referred plaintiff’s motion to the undersigned. [Doc. #32]. The
next day, the Court denied plaintiff’s motion, without
prejudice. [Doc. #33]. The Court stated, inter alia: “If
plaintiff wishes to pursue this request, he may file a renewed
motion that includes a list of the interrogatories he wishes to
serve, and explains why each of the interrogatories is necessary
and appropriate under Rule 26.” Id. At no time since that Order
has plaintiff filed a renewed motion for permission to serve
excess interrogatories.
On December 11, 2017, Judge Thompson held a telephonic
status conference, and ordered that all discovery be completed
by February 9, 2018. See Doc. #40. Judge Thompson further
ordered that any dispositive motions be filed by March 12, 2018.
See id. No dispositive motions having been filed, on April 9,
2018, Judge Thompson entered a Trial Memorandum Order, requiring
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that the parties jointly file by May 9, 2018, a Trial Memorandum
for approval by the Court. [Doc. #43].
Plaintiff filed the motions now at issue on April 11, 2018,
and April 16, 2018, respectively. The Court addresses each in
turn.
II.

Motion to Compel [Doc. #44]
Plaintiff moves to compel answers to 183 separate

interrogatories directed to defendant Dr. Wu. See Doc. #44.
Plaintiff also seeks the award of “punitive monetary sanctions
to be awarded to charity” in light of “defendants failure to
comply with the Federal Rules of Civil Procedure[.]” Id. at 1
(sic). Plaintiff asserts that Dr. Wu has provided no response to
any of the 183 interrogatories. See id. Dr. Wu responds that
plaintiff never sought permission to serve 183 interrogatories
and that answering 183 interrogatories is overly burdensome and
an abusive discovery tactic. See Doc. #49 at 1.
A. Legal Standard
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
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scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(1). “[T]he burden of demonstrating
relevance is on the party seeking discovery[.]” Mason Tenders
Dist. Council of Greater New York v. Phase Constr. Servs., Inc.,
318 F.R.D. 28, 36 (S.D.N.Y. 2016). Once the party seeking
discovery has demonstrated relevance, the burden then shifts to
“[t]he party resisting discovery ... [to] show[] why discovery
should be denied.” Cole v. Towers Perrin Forster & Crosby, 256
F.R.D. 79, 80 (D. Conn. 2009) (alterations added).
B. Discussion
As an initial matter, the Court notes that plaintiff filed
his motion to compel well after the close of discovery. “Though
Rule 37 does not establish time limits for such a motion, a
party seeking to file a motion to compel after discovery has
closed must ... establish good cause.” Gucci Am., Inc. v.
Guess?, Inc., 790 F. Supp. 2d 136, 139 (S.D.N.Y. 2011); accord
Casagrande v. Norm Bloom & Son, LLC, No. 3:11CV1918(CSH), 2014
WL 5817562, at *2 (D. Conn. Nov. 10, 2014). Plaintiff offers no
good cause for the Court to consider his motion to compel at
this late stage. Thus, the Court could simply deny plaintiff’s
motion as untimely. See, e.g., Richardson v. City of New York,
326 F. App’x 580, 582 (2d Cir. 2009) (“[T]he district court did
not abuse its discretion in denying Plaintiff’s motion to compel

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discovery, which was filed over one month after the close of
discovery, as untimely.”); James v. United States, No.
99CV4238(BSJ)(HBP), 2003 WL 22149524, at *6 (S.D.N.Y. Sept. 17,
2003) (denying motion to compel as untimely where it was filed
six months after the close of discovery and the movant proffered
no justification for the untimeliness). However, in recognition
of plaintiff’s self-represented status, the Court will review
the substance of plaintiff’s motion, particularly in light of
the representation that Dr. Wu has provided no answers to the
interrogatories at issue. See Doc. #44 at 1.
Plaintiff seeks to compel answers to 183 interrogatories.
“Unless otherwise stipulated or ordered by the court, a party
may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” Fed. R. Civ.
P. 33(a)(1). Plaintiff has failed to request permission to serve
excess interrogatories as to any party. However, rather than
deny plaintiff’s motion to compel outright on this basis, the
Court will consider the reasonableness of the first 25
interrogatories propounded to Dr. Wu.
After reviewing the first 25 interrogatories propounded on
Dr. Wu and the allegations of plaintiff’s Complaint, as limited
by the Initial Review Order, see Docs. #1, #7, the Court hereby
orders as follows:

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Dr. Wu shall answer interrogatories 1 through 5, 8 through
10, 12, and 15 through 25 as currently framed.
Interrogatory 6 is overbroad and vague as currently framed.
As to interrogatory 6, Dr. Wu shall identify each medical school
he has attended, and the degree he obtained from that
institution.
Interrogatory 7 is overbroad and vague as currently framed.
As to interrogatory 7, Dr. Wu shall identify each employer for
whom he has worked in a medical capacity in the past ten years.
Interrogatory 11 is temporally overbroad and seeks
information that is not relevant to this case. The allegations
of the complaint relate to incidents at Corrigan Correctional
Institution, beginning on or about July 29, 2016, when plaintiff
was transferred from MacDougall to Corrigan. See generally Doc.
#1 at 2. Accordingly, as to interrogatory 11, Dr. Wu shall
answer only as to Corrigan, and for the time period of July 29,
2016, through June 15, 2017.1
Interrogatory 13 is temporally overbroad and seeks
information that is not relevant to this case. The allegations

On June 19, 2017, plaintiff filed a “Notice Re: Change of
Address”, bearing the date of June 15, 2017. Doc. #24. That
document states that plaintiff’s address had changed to
MacDougall Correctional Institute. See id. Because the
allegations of the Complaint relate to incidents at Corrigan,
the Court limits the temporal scope of the requests to the dates
during which plaintiff was housed at that facility.
1

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of the Complaint relate to incidents at Corrigan Correctional
Institution, beginning on or about July 29, 2016, when plaintiff
was transferred from MacDougall to Corrigan. See generally Doc.
#1 at 2. Accordingly, as to interrogatory 13, Dr. Wu shall
answer only as to Corrigan, and for the time period of July 29,
2016, through June 15, 2017.
Interrogatory 14 seeks information that is not relevant to
this case. The allegations of the Complaint relate to incidents
at Corrigan Correctional Institution, not MacDougall. See
generally Doc. #1 at 2. Accordingly, as to interrogatory 14, Dr.
Wu shall answer only as to Corrigan.
Dr. Wu shall provide answers to the above-referenced
interrogatories on or before June 8, 2018.
Plaintiff’s request for monetary sanctions is DENIED.
III. Motion for Extension of Time to Complete Discovery and for
Modification of the Scheduling Order [Doc. #45]
After the filing of the motion to compel, on April 16,
2018, plaintiff filed a motion for extension of time and for
modification of the scheduling order. [Doc. #45]. Plaintiff
requests “an additional 90 days to complete discovery, up to and
including August 9, 2018; and September 10, 2018, to file a
Joint Trial Memorandum[.]” Id. at 1. As grounds for the
requested extension, plaintiff represents that he has: been
“working to complete discovery” in another federal court case;

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that his “discovery efforts have been ... hampered by the DOC;”
and “the court has set unreasonably expedited discovery in a
number of this plaintiffs actions before this court, leaving the
plaintiff and defense counsel no other options but to invest
everyday solely to matters before the court with no leeway for
anything else.” Id. at 1-2 (sic). The Court construes
plaintiff’s motion as one for modification of the scheduling
order and to reopen discovery.
Pursuant to the Local Rules, all requests for an extension
of time must be supported by a showing of good cause. See D.
Conn. L. Civ. R. 7(b)(1). Plaintiff represents that he is unable
to meet the deadlines in this matter as a result of his
litigating other federal and state court cases. See Doc. #45 at
1. The press of other business does not constitute good cause to
extend deadlines. See, e.g., Wingates, LLC v. Commonwealth Ins.
Co. of Am., 21 F. Supp. 3d 206, 215 (E.D.N.Y. 2014), aff’d, 626
F. App’x 316 (2d Cir. 2015); Shemendera v. First Niagara Bank
N.A., 288 F.R.D. 251, 253 (W.D.N.Y. 2012); Lynch v. Waitman, No.
94CV0265(LAK)(BAL), 1995 WL 7991, at *3 (S.D.N.Y. Jan. 10,
1995).
The Second Circuit has emphasized that “a finding of ‘good
cause’ depends on the diligence of the moving party.” Parker v.
Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).
Plaintiff asserts that he “works diligently to meet a number of
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unreasonably expedited pleading and discovery deadlines.” Doc.
#45 at 1. Here, however, plaintiff filed his motion for an
extension of time over two months after the close of discovery,
and less than 30 days before the deadline for the filing of the
joint trial memorandum. Such a late filing does not support a
finding of diligence on the part of the plaintiff. See, e.g.,
Shemendera, 288 F.R.D. at 253 (“The filing of a request for an
extension on the final day of the time period does not provide
good cause for an extension of the deadline. To the contrary, it
is evidence of being remiss in one’s duties.” (citation
omitted)).
In addition to diligence, courts in this Circuit consider
several other factors in assessing whether to extend a
scheduling order and reopen discovery: “(1) the imminence of
trial; (2) whether the request is opposed; (3) prejudice to the
nonmoving party; (4) whether the moving party foresaw the need
for additional discovery, in light of the discovery deadline set
by the court; and (5) whether further discovery is likely to
lead to relevant evidence.” Casagrande, 2014 WL 5817562, at *2
(D. Conn. Nov. 10, 2014) (quoting Jeannite v. City of New York
Dep’t of Bldgs., No. 09CV3464(DAB)(KNF), 2010 WL 2542050, at *2
(S.D.N.Y. June 21, 2010)).
Here, although a trial date has not yet been set, the
parties’ joint trial memorandum is due on May 9, 2018. See Doc.
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#43. This factor weighs against extending the scheduling order
and reopening discovery at this late date.
Defendants do not oppose reopening discovery, provided that
they are provided an opportunity to file a motion for summary
judgment. See Doc. #49 at 1-2. In the event that discovery is
reopened, the Court finds that any prejudice suffered by
defendants could be ameliorated by allowing defendants to file a
motion for summary judgment. Accordingly, these two factors
weigh in favor of extending the scheduling order and reopening
discovery.
As to the fourth factor, plaintiff is an experienced party
in federal court, and he undoubtedly foresaw the need for
additional discovery in light of the discovery deadline set by
Judge Thompson. This factor weighs against extending the
scheduling order and reopening discovery.
Finally, whether further discovery in this matter may lead
to relevant evidence is unclear. Plaintiff has failed to proffer
any information at all regarding what additional discovery he
would seek from which defendant. Further, plaintiff will be
receiving discovery in a related case, Harnage v. Wright,
16CV1543(AWT), which may apply to some of the claims asserted in
this matter. Accordingly, this factor also weighs against
extending the scheduling order and reopening discovery.

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On balance, the above-referenced factors and plaintiff’s
diligence, or lack thereof, do not weigh in favor of extending
the scheduling order and reopening discovery. “A party seeking
to reopen discovery bears the burden of establishing good
cause and discovery should not be extended when there was ample
opportunity to pursue the evidence during discovery.” Pharmacy,
Inc. v. Am. Pharm. Partners, Inc., No. 05CV776 (DRH)(AKT), 2008
WL 4415263, at *3 (E.D.N.Y. Sept. 24, 2008). Here, plaintiff has
failed to establish good cause for the reopening of discovery,
or otherwise extending the scheduling order. Plaintiff has had
ample opportunity to conduct discovery in this matter, which has
been pending since October 2016. Indeed, plaintiff has already
sought and obtained one extension of the scheduling order. See
Docs. #12, #18. Judge Thompson then further extended the
deadline by which to complete discovery until February 9, 2018.
See Doc. #40. Plaintiff states that he chose to focus on other
litigation during this matter’s discovery period; he must bear
the consequences of that decision. “Plaintiffs, as initiators of
lawsuits, must be held accountable for their actions just as
litigants can be held to the actions of their counsel.” Lopez v.
Ramos, No. 11CV07790(NSR), 2013 WL 6912692, at *3 (S.D.N.Y. Dec.
30, 2013). Accordingly, the Court DENIES, in part, plaintiff’s
Motion for Extension of Time and Modification of the Scheduling
Order [Doc. #45]. The Court GRANTS that motion, in part, but
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only for the limited purpose of completing the discovery ordered
herein.
IV.

Conclusion
For the reasons stated above, the Court GRANTS, in part,

and DENIES, in part, plaintiff’s motion to compel [Doc. #44],
and GRANTS, in part, and DENIES, in part, plaintiff’s motion for
extension of time to complete discovery and modification of
scheduling order [Doc. #45], for the limited purpose of
completing the discovery ordered herein.
This is not a Recommended Ruling. This is an order
regarding discovery and case management which is reviewable
pursuant to the “clearly erroneous” statutory standard of
review. See 28 U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and
D. Conn. L. Civ. R. 72.2. As such, it is an order of the Court
unless reversed or modified by the district judge upon motion
timely made.
SO ORDERED at New Haven, Connecticut, this 9th day of May,
2018.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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