BURCH v. MCNEIL

Filing 28

ORDER - Petitioner's 27 MOTION to Compel is Granted in part and Denied in part. The motion is granted to the extent that Petitioner shall file a reply to Respondent's answer 22 on or before January 20, 2010. The mot ion is Denied without prejudice to the extent Petitioner seeks an order compelling Respondent to provide Petitioner with copies of documents. - - (Reply due by 1/20/2010. ) - - - Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on December 22, 2009. (cbj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION TRACEY ALLEN BURCH, Petitioner, vs. WALTER A. McNEIL, Respondent. ___________________________________/ ORDER This cause is before the court on Petitioner's Motion to Compel (Doc. 27), in which Petitioner seeks an order compelling Respondent to provide copies of documents referenced by Respondent in his response (Doc. 22) to Petitioner's petition for writ of habeas corpus (Doc.1). Petitioner additionally requests that the time for filing a reply to Respondent's response be tolled during the pendency of the instant motion to compel (Doc. 27 at 3).1 Initially, the court notes that Petitioner failed to comply with Rule 7.1(B) of the Local Rules of the Northern District of Florida, which provides in relevant part as follows: Counsel for the moving party, or a party who proceeds pro se, shall confer with counsel for the opposing party and shall file with the court, at the time of filing a motion, a statement certifying that counsel or the pro se party has conferred with counsel for the opposing party in a good faith effort to resolve by agreement the issues raised or has attempted to so confer but, for good cause stated, was unsuccessful. If certain issues have been resolved by agreement, the certificate shall specify the issue so resolved and those remaining for resolution. Counsel shall clearly identify those motions which are consented to in their entirety. N.D. Fla. Loc. R. 7.1(B). Petitioner's counsel does not indicate in the motion whether he conferred with counsel for Respondent prior to filing the motion to compel, and Respondent's position on the
Petitioner's reply was due on or before December 18, 2009 (see Docket Entry 26), the date Petitioner filed the instant motion to compel.
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Case No.: 3:09cv118/LAC/EMT

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motion is unknown. Thus, the motion--to the extent Petitioner seeks an order compelling Respondent to provide copies of documents--will be denied without prejudice to Petitioner's refiling a motion that complies with the rules of this court. As to Petitioner's request to toll the time for filing a reply, the court will construe Petitioner's request as a motion to extend the time for filing a reply and grant the motion. The court grants Petitioner's motion to this extent in the interest of justice, despite the failure by Petitioner's counsel to comply with Local Rule 7.1(B). Accordingly, it is ORDERED: Petitioner's Motion to Compel (Doc. 27) is GRANTED in part and DENIED in part. The motion is granted to the extent that Petitioner shall file a reply to Respondent's answer on or before JANUARY 20, 2010. The motion is DENIED without prejudice to the extent Petitioner seeks an order compelling Respondent to provide Petitioner with copies of documents. DONE AND ORDERED this 22nd day of December 2009.

/s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE

Case No.: 3:09cv118/LAC/EMT