Delcarpio v. Cain et al

Filing 22

ORDER denying 18 Motion to Extend Discovery Deadlines and Filing Motion for Summary Judgment and Motion to Dismiss or Defer 18 Motion for Summary Judgment. Plaintiff may file a cross motion for summary judgment or an opposition to pending 18 Motion for Summary Judgment within 30 days of the date of this Order. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 5/19/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BERNARD DELCARPIO (#119047)

CIVIL ACTION

VERSUS
N. BURL CAIN, ET AL.

NO. 13-0273-SDD-RLB

ORDER
This matter comes before the Court on the plaintiff’s “Motion to Reset Deadlines for
Discovery and Filing Motion for Summary Judgment and Motion to Dismiss or Defer
Defendants’ Motion for Summary Judgment” (Rec. Doc. 18), pursuant to which the plaintiff
seeks (1) additional time within which to propound written discovery and (2) an extension of the
deadline imposed by the Court for the filing of cross-motions for summary judgment. This
Motion is opposed.
The plaintiff’s Motion shall be denied. Pursuant to Order dated June 16, 2013 (Rec. Doc.
8), the Court directed the defendants, upon service, to file into the record of this proceeding
documentation deemed pertinent to the plaintiff’s claims. The Court’s Order further directed the
parties to complete discovery within ninety (90) days of the defendants’ first appearance and to
file cross-motions for summary judgment within one hundred and twenty (120) days of such
appearance. The Court’s Order also authorized the parties to engage in additional limited
discovery as stated therein.
Pursuant to an Answer filed herein on January 13, 2014 (Rec. Doc. 14), the defendants
formally appeared in this proceeding. In addition, pursuant to a submission filed herein on
January 16, 2014 (Rec. Doc. 15), the defendants complied with the Court’s Order by filing into

the record documentation deemed pertinent to the plaintiff’s claims. Finally, on March 19, 2014,
the defendants filed a Motion for Summary Judgment (Rec. Doc. 17), seeking a dismissal of the
plaintiff’s claims.
The plaintiff has not propounded additional discovery as authorized by the Court.
Instead, on or about April 7, 2014, approximately one week prior to conclusion of the 90-day
discovery period authorized by the Court, the plaintiff filed the instant Motion to Reset
Deadlines. The plaintiff complains therein that the defendants’ pending Motion for Summary
Judgment is premature because it was filed during the allowed discovery period, and the plaintiff
requests additional time within which to complete discovery and to file his own motion for
summary judgment. In the Court’s view, the plaintiff’s Motion comes too late. The Motion is
not accompanied by any proposed written discovery for the Court’s review, and the plaintiff has
provided no reasonable justification for his failure to pursue discovery during the discovery
period.1 Accordingly,
IT IS ORDERED that the plaintiff’s “Motion to Reset Deadlines for Discovery and
Filing Motion for Summary Judgment and Motion to Dismiss or Defer Defendants’ Motion for
Summary Judgment” (Rec. Doc. 18) be and it is hereby DENIED. The plaintiff is advised that

1. On or about February 7, 2014, the plaintiff submitted for filing a Traverse in response
to the defendants’ Answer. See Rec. Doc. 16. The plaintiff apparently believed that he could
await a Ruling from the Court in connection with that Traverse and that he would be allowed to
engage in discovery after such Ruling. See Rec. Doc. 20 at p. 2-3. Notwithstanding, the
referenced Traverse did not constitute a motion which necessitated any ruling by the Court, and
the filing of the Traverse did not otherwise extend the discovery period authorized by the Court.
Had the defendants filed a motion to dismiss wherein they asserted the defense of qualified
immunity, discovery may well have been stayed in this proceeding pending a ruling relative to
that motion. See, e.g., Wicks v. Mississippi State Employment Services, 41 F.3d 991, 994 (5th
Cir. 1995), citing Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th Cir. 1987). However, in the
absence of any assertion by the defendants that they sought to avoid the burden of discovery, the
plaintiff was not entitled to simply ignore the 90-day discovery period imposed by the Court.

he may file a cross-motion for summary judgment or an opposition to the defendants’ pending
Motion for Summary Judgment within thirty (30) days of the date of this Order.
Signed in Baton Rouge, Louisiana, on May 19, 2014.

s

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE