Goodman et al v. United States of America et al

Filing 294

OPINION AND ORDER: Motion to Compel Federal Defendants Answers to Plaintiffs Supplemental Interrogatories 257 is DENIED AS MOOT; the Motion for Leave to File a Response 258 is DENIED; the Motion to Stay Prosecution of Defendants Motion for Summary Judgment 271 is DENIED; the Motion to Extend the Discovery Closure Date 272 is DENIED; and the Motion to Compel 282 is DENIED. Signed by Magistrate Judge Andrew P Rodovich on 5/28/2014. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROY GOODMAN, JR., et al.,
Plaintiffs,
v.
AGENT CHRISTOPHER SOYEZ., et al.,
Defendants.

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Case No. 2-09-CV-355

OPINION AND ORDER
This matter is before the court on the Motion to Compel Federal Defendants’ Answers to
Plaintiffs’ Supplemental Interrogatories [DE 257] filed on January 10, 2014; the Motion for
Leave to File a Response [DE 258] filed by the plaintiffs on January 10, 2014; the Motion to
Stay Prosecution of Defendants’ Motion for Summary Judgment [DE 271] filed by the plaintiffs
on February 24, 2014; the Motion to Extend the Discovery Closure Date [DE 272] filed by the
plaintiffs on February 27, 2014; and the Motion to Compel [DE 282] filed by the plaintiffs on
March 28, 2014.
For the following reasons, the Motion to Compel Federal Defendants’ Answers to
Plaintiffs’ Supplemental Interrogatories [DE 257] is DENIED AS MOOT; the Motion for Leave
to File a Response [DE 258] is DENIED; the Motion to Stay Prosecution of Defendants’ Motion
for Summary Judgment [DE 271] is DENIED; the Motion to Extend the Discovery Closure Date
[De 272] is DENIED; and the Motion to Compel [DE 282] is DENIED.

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Background
This matter arises out of a search and seizure that federal agents and members of the
Hammond Police Department conducted on the plaintiffs’ home on December 28, 2007. The
plaintiffs allege that the defendants used excessive force by employing sound grenades and
smoke bombs prior to entering their home to execute a search warrant and by shoving, grabbing,
and using restraints on the plaintiffs. The plaintiffs further allege that the defendants arrested
them despite the fact that they had not violated any law. The plaintiffs also complain that the
Hammond officers, Calumet City officers, and federal agents conspired to cause damage to the
plaintiffs by agreeing falsely to arrest them, agreeing falsely to institute criminal proceedings
against Roy Goodman, Jr., agreeing not to report each other after witnessing or using excessive
force, agreeing not to report each other after falsely arresting or charging the plaintiffs, and
generating false documentation to cover up their own and each others’ misconduct.
The federal defendants filed a motion to dismiss on December 30, 2010. The district
court granted the motion and gave the plaintiffs leave to file an amended complaint with respect
only to Count I, excessive force, and Count VIII, conspiracy related to the allegations of
excessive force. The district court limited the excessive force claims to the use of flash-bang
grenades because it determined that the defendants had qualified immunity for their other means
of force. All other claims were dismissed against the federal defendants without leave to amend.

Following the district court’s ruling, the federal defendants asked the court to limit the
scope of discovery that may be served upon them to that related to the excessive force claims
regarding the flash bang device. The court denied the federal defendants’ motion, explaining

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that discovery extends to the pursuit of information that may be relevant to “any party’s claim or
defense.”
On January 10, 2014, the plaintiffs moved the court to compel the federal defendants to
answer interrogatory requests related to their malicious prosecution claims. The federal
defendants objected but later filed a notice which stated that they were supplementing their
response.
Over the course of discovery, the plaintiffs also learned that the defendants had pictures
from the event that gave rise to this action. The defendants turned over the thumbnail images,
but the plaintiffs now move to compel production of the electronic files containing the images.
On June 4, 2013, and August 9, 2013, some of the defendants filed a motion for summary
judgment. On August 23, 2013, the district court set a briefing schedule for dispositive motions.
The order stated that the plaintiffs were to respond to all pending motions by October 11, 2013,
and that the defendants were to reply by October 31, 2013. On October 11, 2013, the plaintiffs
filed a response. However, the plaintiffs did not respond to the substantive arguments in the
defendants’ motion and instead asked for additional time to conduct discovery under Federal
Rule of Civil Procedure 56(d). The plaintiffs made no effort to conduct depositions prior to
making this request, explaining that they were awaiting the federal defendants’ response to
several discovery requests so that they could identify the individual defendants’ involvement in
the incident. The plaintiffs did not file a separate motion seeking such relief.
On February 27, 2014, the plaintiffs filed a motion for an extension of time to complete
discovery so that they could conduct depositions of the all of the defendants. The federal
defendants objected because they provided initial disclosures that included the FBI reports that

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summarized the investigative activity related to the shooting and robbery. The report stated the
name of every officer and agent involved in the investigation. It is the defendants’ position that
the plaintiffs had sufficient information to identify which agents were involved and to proceed
with the depositions, and that their failure to do so does not warrant further delay with respect to
the pending motions for summary judgment.
Some of the Hammond defendants also filed a motion for partial summary judgment [DE
265] on February 6, 2014. On February 24, 2014, the plaintiffs moved to stay prosecution of the
defendants’ motion for partial summary judgment so that they could conduct additional
discovery. Several of the defendants who joined the motion for partial summary judgment were
terminated on July 8, 2013. The remaining defendants were dismissed pursuant to a joint
stipulation the parties filed on May 1, 2014.
The Hammond defendants also filed a motion to dismiss on November 8, 2013. On
November 22, 2013, the plaintiffs filed a motion for extension of time to file a response to the
defendants’ motion to dismiss. Their motion was granted, and the plaintiffs were given until
December 2, 2013, to file a response. The plaintiffs did not file a timely response, and the
defendants moved for summary ruling. This court issued a Report and Recommendation,
recommending that the motions for summary ruling be granted but that the motions to dismiss be
denied. The plaintiffs now move to file their response to the Hammond Defendants’ motion to
dismiss instanter.
Discussion
The plaintiffs first move the court to compel the federal defendants to answer

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interrogatory requests related to the plaintiffs’ malicious prosecution claims.1 The federal
defendants first objected to the plaintiffs’ motion to compel, but on February 11, 2014, they filed
a notice that they were supplementing their response to Interrogatory No. 5. For this reason, the
plaintiffs’ motion to compel [DE 257] is DENIED AS MOOT.
The plaintiffs next request leave to file a response to the Hammond defendants’ motion to
dismiss. The plaintiffs’ response was due on or before November 21, 2013. The parties filed an
agreed motion to extend the deadline for the plaintiffs to respond until December 2, 2013. The
court granted the parties’ motion. The plaintiffs did not file a response by this date, and on
December 13, 2013, the federal defendants filed a motion for summary ruling based on the
plaintiffs’ failure to respond to the pending motion to dismiss. On January 10, 2014, almost a
month after the federal defendants filed their motion for summary ruling, the plaintiffs filed the
instant motion for leave to file their response instanter.
Federal Rule of Civil Procedure 16(b) provides that a schedule shall not be modified
except upon a showing of good cause and by leave of the court. See also Campania
Management Co., Inc., v. Rooks, Pitts & Poust, 290 F.3d 843, 851 (7th Cir. 2002); Briesacher
v. AMG Resources, Inc., 2005 WL 2105908 at *2 (N.D. Ind. Aug.31, 2005). Good cause
sufficient for altering discovery deadlines is demonstrated when a party shows that, “despite
their diligence, the established timetable could not be met.” Tschantz v. McCann, 160 F.R.D.
568, 571 (N.D. Ind. 1995).
The only reason the plaintiffs offer for failing to file their response timely is that they

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The plaintiffs did not file a separate certification that they conferred in good faith or
attempted to confer in good faith with the federal defendants as required by Northern District of
Indiana Local Rule 37-1. Their motion could be denied on this basis alone.
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sought an extension and were waiting on the court’s ruling. However, the court granted the
agreed extension three days after it was filed and extended the plaintiffs’ deadline to respond
until December 2, 2013. See DE 253. In their brief, the plaintiffs refer to their November 29,
2013 reply brief in support of their motion to extend the time to conduct their depositions. See
DE 254. The plaintiffs argue that they sought a 21 day extension of time to respond to the
motion to dismiss in this reply brief. However, the plaintiffs stated only that their response to
the motion to dismiss would be forthcoming and did not request such relief. Regardless,
Northern District of Indiana Local Rule 7-1 states that motions must be filed separately. The
plaintiffs did not make this request by a separate motion and took no action until nearly a month
after the defendants requested a summary ruling on their motion to dismiss. The plaintiffs have
offered no reason for this significant delay. The plaintiffs have failed to show good cause for
failing to respond to the defendants’ motion by December 2, 2013. Moreover, the court already
has issued a Report and Recommendation, which recommends that the motion to dismiss be
denied. It would be futile to permit the plaintiffs to file a response at this stage. For these
reasons, their Motion for Leave to File a Response [DE 258] is DENIED.
The plaintiffs next move to stay the defendants’ motion for partial summary judgment
[DE 265] so that they may conduct additional discovery. Several of the defendants who joined
the motion for partial summary judgment were terminated on July 8, 2013. The remaining
defendants were dismissed pursuant to a joint stipulation the parties filed on May 1, 2014. None
of the parties who filed the motion for partial summary judgment remain. Therefore, the
plaintiffs’ motion to stay [DE 271] is DENIED AS MOOT.
The plaintiffs also requested to extend the discovery deadline. The plaintiffs argue that

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discovery was delayed by the federal defendants’ motion to limit discovery, which was denied
on April 11, 2013. Having received additional discovery from the defendants following the
court’s ruling, the plaintiffs now request additional time to conduct the defendants’ depositions.
The defendants respond that the plaintiffs have not demonstrated good cause for their delay in
conducting discovery and further argue that it is unnecessary to conduct 30 depositions.
At this time, there are two motions for summary judgment that remain pending against
the plaintiffs. The plaintiffs failed to file a timely response to the motion for summary judgment
filed by Roger Cardwell and Brian Campos [DE 221]. With regard to the motion for summary
judgment filed on August 5, 2013 [DE 231], the plaintiffs filed a response, in which they stated
that they needed additional time under Federal Rule of Civil Procedure 56(d) to conduct
discovery and respond. However, the plaintiffs did not file a separate motion requesting this
relief. See Local Rule 7-1 (explaining that motions must be filed separately). Because the
motions for summary judgment remain pending, the court will evaluate whether the plaintiffs
should be granted leave to conduct additional discovery under Rule 56(d).
Rule 56(d) states, “If a party opposing the motion shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1)
defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.”2 In order to succeed on a Rule 56(d)
Motion, the plaintiff must identify the specific evidence which would create a genuine issue of

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Federal Rule of Civil Procedure 56 was amended in 2010. Subsection (d) was carried
forward without substantial change from prior subdivision (f). FED. R. CIV. P. 56 Advisory
Committee Notes. Therefore, some of the cases the court cites may refer to Rule 56(f), but the
current Rule 56(d) analysis is the essentially the same.
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fact. American Needle, Inc v. National Football League, 538 F.3d 736, 740 (7th Cir. 2008)
(overturned on other grounds). “Summary judgment should not be entered ‘until the party
opposing the motion has had a fair opportunity to conduct such discovery as may be necessary to
meet the factual basis for the motion.’” Chalimoniuk v. Interstate Brands Corporation, 172 F.
Supp.2d 1055, 1057-58 (S.D. Ind. 2001)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326,
106 S. Ct. 2548, 91 L.Ed.2d 265 (1986)). Rule 56(d) is not meant to allow a party to block
summary judgment simply by offering generalities about the need for further discovery. Woods
v. City of Chicago, 234 F.3d 979, 990-91 (7th Cir. 2001). “Rule [56(d)] does not operate to
protect parties who are dilatory in the pursuit of discovery.” Allan Block Corp. v. County
Materials Corp., 588 F.Supp.2d 976, 980 (W.D. Wis. 2008)(citing Doty v. Illinois Cent. R. Co.,
162 F.3d 460, 461-62 (7th Cir. 1998)).
A court may grant a Rule 56(d) motion on the grounds that issues of material fact were in
dispute and the requesting party deserved the opportunity and benefit of discovery. See
Chalimoniuk, 172 F. Supp. 2d at 1057-58 (granting Rule 56(d) motion when plaintiff moved for
summary judgment before any discovery had taken place). Likewise, when issues material to the
outcome of the matter are in question, the full benefit of discovery is deserved. Chalimoniuk,
172 F. Supp. 2d at 1059.
However, a court may deny a Rule 56(d) motion when a party fails to pursue discovery in
the allotted time frame. See Allen Block Corporation v. County Materials Corporation, 588 F.
Supp.2d 976, 980-81 (W.D. Wis. 2008) (“It would be . . . inappropriate to continue trial to permit
yet another period of discovery when plaintiff has failed to take full advantage of two lengthy
opportunities for discovery.”). See also Hu v. Park National Bank, 333 Fed. Appx. 87, 89-90

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(7th Cir. 2009) (affirming denial of Rule 56(d) motion because the plaintiff “did nothing during
discovery” and waited until two months after Park National Bank had filed its motion for
summary judgment to ask for additional time for discovery). Likewise, a court may deny a Rule
56(d) motion because the requesting party fails to identify with specificity the evidence it may
have obtained with the additional discovery that would create a genuine issue of material fact.
See American Needle Inc. v. National Football League, 538 F.3d 736, 740 (7th Cir. 2008)
(affirming district court’s denial of Rule 56(d) motion). In short, the moving party must show:
(1) good cause for the discovery delays; (2) the specific discovery that is necessary to prepare a
response to the motion for summary judgment; and (3) that the additional discovery will give
rise to a genuine issue of material fact. Bernegger v. Gray & Associates LLP, 2009 WL
3148723, *3 (E.D. Wis. 2009).
The plaintiffs’ motion fails on multiple accounts. First, they have failed to show why
they did not conduct the depositions within the allotted time frame. Discovery has been ongoing
since November 2012. Although the plaintiffs argue that they were waiting on production of
some evidence that the federal defendants turned over after the court ruled on the defendants’
motion to limit discovery, they made no attempt to show why it was necessary to wait for the
evidence to conduct the depositions. Although the court did note in its order that this evidence
the federal defendants were withholding was relevant, the plaintiffs have not argued that they
could not take a meaningful deposition without it. In fact, the plaintiffs’ counsel stated that he
did not know the photos even existed until Roy Goodman’s deposition was conducted, yet he has
failed to show why he did not take any depositions prior to February 2014.
The defendants characterize the discovery as being of little importance, arguing that they

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supplemented their response to one interrogatory and provided 26 views of the exterior of the
house, 4 photos of the warrants issued related to the search, 3 photos of Roy Goodman Jr., and 1
photo of each remaining plaintiff. If this is true, which the plaintiffs do not dispute, it is even
less clear why the depositions could not have been conducted at an earlier time. The plaintiffs
have failed to show how this information was new and impacted their decision on when to take
depositions.
Furthermore, the plaintiffs have failed to show the specific discovery they intend to
conduct and how it will impact their ability to respond to the pending motions for summary
judgment, specifically in light of the fact that they did not file a timely Rule 56(d) motion or
response brief, nor have they requested leave to file a belated response. Because the plaintiffs
already have missed their opportunity to respond, it does not appear that additional discovery
would be beneficial.
Finally, even if the plaintiffs were permitted to file a response, they have not given the
court any indication on how the proposed discovery would create a genuine issue of material
fact. In fact, the plaintiffs have not even identified which individuals they intend to depose or
what information they intend to illicit. The plaintiffs’ motion is void of any reason why the
depositions are necessary, and they have failed to satisfy their burden. For these reasons, the
plaintiffs’ Motion to Extend the Discovery Closure Date [DE 272] is DENIED.
The plaintiffs also move to compel the defendants to produce electronic images of the
scene. Federal Rule of Civil Procedure 37 requires that a motion for an order compelling
disclosure or discovery “must include a certification that the movant has in good faith conferred
or attempted to confer with the person failing to make disclosure or discovery in an effort to

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obtain it without court action.” Rule 37(a)(1). Local Rule 37-1 requires that such certification
reciting the date, time, and place of the conference or attempted conference and the names of all
persons participating “shall be made in a separate document filed contemporaneously with the
motion.” L.R. 37-1(c). Here, the Motion to Compel [DE 282] does not comply with the
certification requirements and is therefore DENIED.
ENTERED this 28th day of May, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge

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