Martin v. Fort Wayne Police Department et al

Filing 59

OPINION AND ORDER GRANTING Defendants' 54 MOTION to Compel. Plaintiff to appear on 8/6/2012 at 8:30 AM as outlined for deposition testimony. Plaintiff's Motion to Compel Defendants' Depositions 57 is DENIED. Signed by Magistrate Judge Roger B Cosbey on 7/20/2012. (kjm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

ANTHONY C. MARTIN,
Plaintiff,
v.
FORT WAYNE POLICE DEPARTMENT,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CAUSE NO. 1:11-CV-351

OPINION AND ORDER
Before the Court in this action advancing various civil rights claims under 42 U.S.C. §
1983 is a motion to compel the Plaintiff’s deposition testimony filed by Defendants on July 11,
2012. (Docket # 54.) Also pending is a “Notice to Take Oral Deposition” filed by the pro se
Plaintiff on July 18, 2012 (Docket # 57), which the Court construes as a motion to compel the
deposition testimony of all the Defendants. A hearing was conducted on the motions on July 19,
2012, at which Plaintiff and counsel to the Defendants appeared in person, and oral argument
was heard and concluded. (Docket # 58.) In short, the Defendants wish to have the Court order
the Plaintiff to appear and submit to a deposition, and the Plaintiff desires that each Defendant
also appear and be deposed. In fact, the Plaintiff seems to suggest that the depositions of the
Defendants can occur at the same time as his deposition, using the court reporter secured by the
Defendants.
The last day for the completion of all discovery in this case is August 20, 2012. (Docket
# 30.) The Defendants originally scheduled the Plaintiff’s deposition for April 23, 2012, but he
failed to appear (Defs.’ Mot. to Compel Ex. G), and thus Defendants filed the instant motion.

The Defendants now seek to conduct, in one day, eight separate one-hour depositions of the
Plaintiff for this case and his seven companion cases. The Plaintiff does not object to being
deposed, but argues that eight depositions in one day is excessive.
The Court GRANTS the Defendants’ motion to compel (Docket # 54) and ORDERS the
Plaintiff under Federal Rule of Civil Procedure 37(d)(1)(A)(i) to APPEAR on Monday, August
6, 2012, at 8:30 a.m., at the E. Ross Adair Federal Building and United States Courthouse, 1300
South Harrison Street, Fort Wayne, IN 46802, and to SUBMIT to deposition questions under
Rule 37(b)(1). Four depositions of the Plaintiff will take place on August 6 in cases 1:11-cv350, 1:11-cv-351, 1:11-cv-352, and 1:11-cv-403.1 The Defendants’ counsel shall decide the
order and duration of these four depositions, but collectively they shall not exceed seven hours.
As to the Plaintiff’s motion to compel the Defendants’ depositions (Docket # 57), it is
DENIED. The Plaintiff has not served notice of a deposition on any party under Federal Rule of
Civil Procedure 30(b)(1), and besides, admits that he does not have the means to pay for the
depositions. More to the point, the record does not support an order that compels each
Defendant to submit to a deposition, and the Plaintiff cannot shift the cost of his depositions to
the Defendants. See, e.g., Dixie v. Fort Wayne Police Dep’t, No. 1:08-cv-85, 2008 WL 2130168,
at *1 (N.D. Ind. May 21, 2008). Of course, the Plaintiff is not precluded from conducting
discovery and may, for instance, wish to submit written interrogatories to the Defendants, see
Smith v. Campagna, No. 94 C 7628, 1996 WL 364770, at *1 (N.D. Ill. June 26, 1996), but is
reminded that for discovery to be timely, it generally must be served at least thirty days prior to

1

The Court is contemporaneously entering separate Opinion and Orders directing the Plaintiff to also
appear at the E. Ross Adair Federal Building on Friday, August 3, 2012, and submit deposition testimony in cases
1:11-cv-346, 1:11-cv-347, 1:11-cv-348, and 1:11-cv-349.

2

the discovery deadline. See Fed. R. Civ. P. 33(b)(2); Martin v. Teusch, No. 1:09-cv-321, 2011
WL 2710446, at *1 (N.D. Ind. July 12, 2011).
SO ORDERED.
Enter for this 20th day of July, 2012.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

3