McCoy (ID 76894) v. Hienschmidt et al

Filing 85

MEMORANDUM AND ORDER ENTERED: Plaintiff's Objection to the Denial of the Plaintiff's Motion to Compel/Plaintiff's Motion for Reconsideration of Motion to Compel is denied. Signed by District Judge Julie A. Robinson on 05/15/14. (Mailed to pro se party DeRon McCoy, Jr. by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DERON MCCOY, JR.,
Plaintiff,
vs.

DAVID L. MILLER et. al.,
Defendants.

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Case No. 12-03050-JAR-KGS

MEMORANDUM AND ORDER
Plaintiff Deron McCoy, Jr. filed this suit against Defendants David Miller, Chris Schultz,
and Lee Campbell, in their individual and official capacities, for several constitutional claims
pursuant to 42 U.S.C. § 1983 and state law claims for false arrest and false imprisonment,
seeking monetary, compensatory, and punitive damages. Before the Court is Plaintiff’s
Objection to the Denial of the Plaintiff’s Motion to Compel/Plaintiff’s Motion for
Reconsideration of Motion to Compel (Doc. 76). The matter is fully briefed and the Court is
prepared to rule. The Court denies Plaintiff’s motion for the reasons set forth below.
I.

BACKGROUND
On April 11, 2013, Plaintiff filed and served his First Set of Interrogatories and First

Request for Production of Documents upon Defendants Miller, Schultz, and Campbell. On May
14, 2013, the officers timely served their response and objections to Plaintiff’s initial discovery
requests.1 From about May 19, 2013 until August 25, 2013, Plaintiff alleges that he sent letters
to and spoke with the officers’ attorney in an effort to resolve the discovery disputes pursuant to

1

Pursuant to Fed. R. Civ. P. 33(b)(2) and 34(b)(2), responses interrogatories and requests for production
must be generally be served within 30 days. However, when service is made by mail, as in this case, the party has
an additional days to respond under Fed. R. Civ. P. 6(d). The officers timely served their responses within 33 days.

the United States District Court for the District of Kansas Rules of Practice and Procedure for
District and Bankruptcy Court (“Local Rules”). On August 30, 2013, Defendants’ attorney sent
Plaintiff a letter indicating that he was still collecting documents that were responsive to
Plaintiff’s discovery requests. On September 24, 2013, Plaintiff filed six Motions to Compel2
related to responses to interrogatories and requests for production of documents. On November
8, 2013, Magistrate Judge Sebelius entered an Order denying Plaintiff’s Motions to Compel,
finding that they were not timely filed. Plaintiff then filed the instant objection and motion for
reconsideration of the November 8, 2013 Order, which the court construes as an objection.3
II.

DISCUSSION
Fed. R. Civ. P. 72 allows a party to provide specific, written objections to a magistrate

judge’s order. With respect to a magistrate judge’s order relating to nondispositive pretrial
matters, the district court does not conduct a de novo review; rather, the court applies a more
deferential standard by which the moving party must show that the magistrate judge’s order is
“clearly erroneous or contrary to the law.”4 “The clearly erroneous standard applies to factual
findings, and ‘requires that the reviewing court affirm unless it on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.’”5
Defendants first argue that Plaintiff’s motion is based on arguments not presented in his

2

Docs. 51, 53, 55, 57, 59, 62.

3

Motions for reconsideration are typically referred to the judge who entered the order in question.
However, the Court construes the instant motion as an objection to the magistrate judge’s order.
4

First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1461–62 (10th Cir. 1988); 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a)).
5

McCormick v. City of Lawrence, No. 02-2135-JWL, 2005 WL 1606595, at *2 (D. Kan. July 8, 2005)
(citing 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, FEDERAL PRACTICE & PROCEDURE § 3069,
at 355 (2d ed. 1997) and quoting Ocelot Oil, 847 F.2d at 1464) (internal quotation marks omitted).

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original motion. “Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.”6 In their response to Plaintiff’s motions to compel,
Defendants raised Plaintiff’s untimeliness as the sole ground for denying the motions. Judge
Sebelius’ Order dismissed Plaintiff’s untimely motions to compel pursuant to Local Rule 37.1,
which requires a motion to compel discovery be filed within thirty days of Plaintiff’s response
unless the court grants an extension for good cause.7 The untimeliness issue was not addressed
in Plaintiff’s initial motion nor did Plaintiff provide a reply to Defendants’ argument. Judge
Sebelius noted that the Plaintiff did not provide an explanation of excusable neglect nor request
an extension. Thus, the Court finds that Plaintiff waived his arguments opposing Defendants’
untimeliness claim.
Even if the Court were to consider Plaintiff’s arguments, Judge Sebelius’ Order was not
clearly erroneous nor contrary to the law. Plaintiff opines that his attempts to meet and confer
with Defendants’ attorney to resolve a discovery dispute, pursuant to Local Rule 37.2,8 excused
his untimeliness because he was legally prevented from bringing the motions to compel unless
he complied with the rule. And, Plaintiff further argues that the deadline for filing motions to
compel should have been tolled when Plaintiff first reached out to Defense counsel via letter on
May 19, 2013. The deadline for filing a motion to compel is not 30 days from the date the

6

Marshall v. Charter, 75 F.3d 1421, 1426 (10th Cir. 1996).

7

See also Firestone v. Hawker Beechcraft Int’l Serv. Co., No-1404-JWL, 2012 WL 359877 at* 4 (D. Kan.
Feb. 2, 2012).
8

Providing in relevant part that “The court will not entertain any motion to resolve a discovery dispute
pursuant to Fed. R. Civ. P. 26 through 37. . . unless the attorney for the moving party has conferred or has made
reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion . .
. A “reasonable effort to confer” means more than mailing or faxing a letter to the opposing party. It requires that
the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.”

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parties conclude their efforts to meet and confer, but rather when the information giving rise to
the dispute is first discovered.9 Judge Sebelius found that Plaintiff filed his motions to compel
approximately 133 days after Defendants served their objections. There were also seventy-eight
days between Plaintiff’s initial letter to the date that the parties spoke. The Court finds that
Plaintiff could have sought an extension from the Court, as is common practice in the District.
Local Rule 37.2 does not require that the non-moving party take action, only that the moving
party take a “reasonable effort to confer.” Plaintiff could have timely filed his motions,
certifying that he made reasonable, yet unsuccessful, efforts to confer. Plaintiff’s status as a pro
se prisoner does not excuse him from following the same rules of civil procedure as other
litigants.10 Accordingly, the Court finds that Judge Sebelius’ order was not clearly erroneous nor
contrary to the law.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Objection to the
Denial of the Plaintiff’s Motion to Compel/Plaintiff’s Motion for Reconsideration of Motion to
Compel (Doc. 76) is denied.
Dated: May 15, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

9

Firestone, 2012 WL 359877 at *4.

10

Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).

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