Jones v. Elkhart City of et al

Filing 52

OPINION AND ORDER: Court GRANTS 46 Motion for Enlargement of Time to Respond to Plaintiff's Discovery Requests. Defendants shall have an extension of time through 5/7/2012, within which to respond to Plaintiff's discovery requests. Court DENIES Plaintiff's Verified Response to Defendants Motion to Quash Subpoena. Signed by Magistrate Judge Paul R Cherry on 5/15/2012. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KENNY A. JONES, SR.,
Plaintiff,
v.
CITY OF ELKHART, et al.,
Defendants.

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CAUSE NO.: 2:10-CV-402-TLS-PRC

OPINION AND ORDER
This matter is before the Court on a Plaintiff’s Verified Response to Defendants [sic] Motion
to Quash Subpoena [DE 44], filed by Plaintiff on April 20, 2012, and a Defendants’ Motion for
Enlargement of Time to Respond to Plaintiff’s Discovery Requests [DE 46], filed by Defendants on
April 23, 2012.
BACKGROUND
On October 8, 2012, Plaintiff filed a Complaint alleging that the Defendants unlawfully
stopped, seized, and imprisoned Plaintiff in violation of numerous statutes and the United States
Constitution.
On January 6, 2011, the Court held a Rule 16(b) Scheduling Conference and set a discovery
deadline of October 14, 2011. On motions from the parties, the discovery deadline was extended
several times, with the final deadline expiring on March 31, 2012.
On April 6, 2012, Defendants filed a Motion to Quash Subpoena requesting that the Court
quash a subpoena for inspection of documents. The Court granted the Motion on April 19, 2012.
On April 20, 2012, Plaintiff filed the instant Motion requesting that the Court reconsider its Order
of April 19, 2012, granting the Motion to Quash. The Court ordered Defendants to file a response
to the Motion to Reconsider on or before May 7, 2012, and Plaintiff to file a reply, if any, on or

before May 14, 2012. Neither a response nor a reply has been filed.
On April 23, 2012, Defendants filed the instant Motion for Enlargement of Time. Plaintiff
filed a response on April 24, 2012. No reply has been filed and the time to do so has passed.
ANALYSIS
A.

Enlargement of Time
Discovery closed on March 31, 2012. No motion to extend the discovery deadline has been

filed by either party, but Defendants have now filed a motion for extension of time to respond to
Plaintiff’s discovery requests.
Plaintiff served counsel for Defendants with the relevant interrogatories on March 4, 2012,
and requests for production on March 29, 2012, two days before the close of discovery. The
responses to the interrogatories were due on April 5, 2012, after the close of discovery, although the
parties informally agreed to an extension of time until April 23, 2012, for Defendants to respond.
Defendants also requested an informal extension of the April 30, 2012, deadline for responses to the
discovery requests, but Plaintiff would not agree. Defendants now request that the Court extend the
deadline for responses to the interrogatories and discovery requests because of the volume of
material involved in the requests.
Under Federal Rule of Civil Procedure 6, “[w]hen an act may or must be done within a
specified time, the court may, for good cause, extend the time . . before the original time or its
extension expires[] or on motion made after the time has expired if the party failed to act because
of excusable neglect.” Fed. R. Civ. P. 6(b)(1) (emphasis added). To determine whether the neglect
was excusable, the Court must “tak[e] into consideration all relevant circumstances including the
danger of prejudice to the non-moving party, the length of the delay and its potential impact on

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judicial proceedings, the reason for the delay, including whether it was within the reasonable control
of the movant, and whether the movant acted in good faith.” Marquez v. Mineta, 424 F.3d 539, 541
(7th Cir. 2005) (quotations and citations omitted). The Rule does not provide for the parties to
extend deadlines on their own, although the Local Rules do provide for a single initial extension of
28 days or fewer upon the agreement of the parties and the filing of a notice of extension with the
Court. N.D. Ind. L.R. 6-1(b). As multiple extensions of time had already been granted in this case,
the parties could not extend the discovery deadline without a motion, and no motion to extend the
discovery deadline has been filed in this case since December, 2011. Accordingly, the discovery
deadline expired on March 31, 2012. Plaintiff should not have filed any request for production or
interrogatories that did not allow sufficient time for responses before that deadline, nor should he
have noticed any subpoenas for any time after that date without receiving an extension of the
deadline.
In this case, Defendants request only a modest enlargement of time within which to respond
to Plaintiff’s late-filed discovery requests. Although the Court declines to recognize the extension
agreed to by the parties without notice to the Court, because the Defendants did file the instant
Motion before the expiration of what they believed to be the deadline, the Court will not conclude
that Defendants acted in bad faith. There is no apparent prejudice to Plaintiff, as the requested
extension is brief and he did not provide sufficient time for responses to be made before the
discovery deadline. The Court concludes that the delay was not entirely within the reasonable
control of the movant, since the timing of the response and the magnitude of the request were in the
control of Plaintiff. Accordingly, the Court grants the requested enlargement of time, making
Defendants’ responses to Plaintiff’s interrogatories and requests for production due to Plaintiff on

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May 7, 2012. The Court does not extend any other deadlines or due dates in this case, including the
discovery deadline, which expired on March 31, 2012.
B.

Motion to Reconsider
Plaintiff requests that the Court reconsider its order of April 19, 2012, granting Defendants’

Motion to Quash Subpoena.
The Seventh Circuit has cautioned that “motions for reconsideration serve a limited
function: to correct manifest errors of law or fact or to present newly discovered evidence.”
Publishers Resource Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985)
(quotation omitted); see also Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990) (A motion to reconsider is proper only when “the Court has patently
misunderstood a party, or has made a decision outside the adversarial issues presented to the Court
by the parties, or has made an error not of reasoning but of apprehension. A further basis for a
motion to reconsider would be controlling or significant change in the law or facts since the
submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should
be equally rare.”); In re Oil Spill by “Amoco Cadiz”, 794 F. Supp. 261, 267 (N.D. Ill. 1992)
(“Motions to reconsider are not at the disposal of parties who want to ‘rehash’ old arguments.”);
Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988) (same).
Accordingly, a motion to reconsider “is not an appropriate forum for rehashing previously rejected
arguments or arguing matters that could have been heard during the pendency of the previous
motion.” Caisse Nationale De Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269-70 (7th Cir.
1996).
In his Motion, Plaintiff argues that the Defendants’ Motion to Quash was untimely and that

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they did not file a Motion for Protective Order or seek conference with the Court before filing the
Motion to Quash. The Defendants’ Motion to Quash was filed one business day before the subpoena
return date.
Federal Rule of Civil Procedure 45 provides that “[o]n timely motion, the issuing court must
quash or modify a subpoena that . . . subjects a person to undue burden.” Fed. R. Civ. P.
45(c)(3)(A). The Rule does not describe what makes a motion timely. Although the Court
recognizes that the Motion was not filed well in advance of the return date, the Court also notes that
Defendants were attempting to resolve the dispute without the Court’s involvement and only filed
the Motion with the Court after Plaintiff refused to discuss any other dates for the subpoena. As
described in the Court’s Order granting the Motion to Quash, the Local Rules emphasize the
importance of counsel “conferr[ing] in good faith or attempt[ing] to confer with other affected
parties in order to resolve the [discovery] matter . . . without court action.” N.D. Ind. L.R. 37-1(a).
The email record attached by Defendants to their Motion to Quash indicated that counsel for
Defendants was attempting to resolve the discovery dispute with counsel for Plaintiff, in accordance
with the local Rules, and filed the Motion as soon as it was obvious that the attorneys would not be
able to reach a resolution on their own. Therefore, the Court will not find that the Motion to Quash
was untimely.
Plaintiff also argues, without citations or argument beyond bare assertions, that a Motion for
Protective Order or other Motion requesting assistance from the Court should have been filed before
a Motion to Quash. Federal Rule of Civil Procedure 26 provides that “[a] party or any person from
whom discovery is sought may move for a protective order in the court where the action is pending,”
Fed. R. Civ. P. 26(c)(1) (emphasis added), but does not require it as a precondition to a Motion to

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Quash. Motions for Protective Order are directed generally to discovery and deposition testimony,
but, as described above, a Motion to Quash is the appropriate vehicle for modification of a subpoena
under Rule 45. It is not apparent to the Court why Plaintiff is arguing that the filing of a Motion to
Quash was an inappropriate action or why some other, differently-titled Motion would have been
a superior method in this case.
Nothing in the Plaintiff’s Motion to Reconsider directly addresses the reasons the Court gave
for granting the Motion to Quash: that
[t]hree weeks after being advised that the proposed dates were unduly
burdensome for Defendant Elkhart PD and its counsel, and without
proposing any new dates or otherwise attempting in good faith to
obtain a mutually agreeable time for inspection of documents,
counsel for Plaintiff served the instant subpoena on Defendant
Elkhart PD without notice to its counsel. The Court concludes that
this action was not in compliance with the requirements of the
Federal and Local Rules, and will therefore quash the subpoena.
Court’s Order of April 19, 2012, at [DE 43]. Plaintiff has not pointed out any manifest errors of law
or fact or presented any new evidence. Accordingly, the Motion for Reconsideration is denied.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS the Defendants’ Motion for
Enlargement of Time to Respond to Plaintiff’s Discovery Requests [DE 46] and ORDERS that
Defendants shall have an extension of time through May 7, 2012, within which to respond to
Plaintiff’s discovery requests. The Court DENIES the Plaintiff’s Verified Response to Defendants
[sic] Motion to Quash Subpoena [DE 44].
SO ORDERED this 15th day of May, 2012.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
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cc:

All counsel of record

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