Baker v. Ephia
ORDER denying 82 Second Motion to Stay Discovery. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/31/2017. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SERGEANT TYRANISSUIN EPHION
Before the Court is Defendant’s Second Motion to Stay Discovery (R. Doc. 82) filed on
August 9, 2017. The Motion is opposed. (R. Doc. 83).
On December 14, 2015, Sede Baker (“Plaintiff”) initiated this action, alleging that while
incarcerated at the Louisiana State Penitentiary (“LSP”) a prison guard identified as “Sergeant
Ephia” violated Plaintiff’s civil rights by allowing another inmate into his cell who attacked and
injured him. (R. Doc. 1).
The Court allowed Plaintiff to conduct limited third-party discovery to obtain the last
known address of the named defendant (R. Doc. 16) and, having learned that the named
defendant was not located in the Louisiana Department of Corrections (“DOC”) records, to
conduct limited third-party discovery to obtain the identity of the correct defendant (R. Doc. 28).
On July 22, 2016, the Court allowed Plaintiff to file an Amended Complaint for Damages
(R. Doc. 35) naming Sergeant Tyranissuin Ephion (“Defendant”) as the correct defendant. (R.
Doc. 36). Plaintiff then served a subpoena on the DOC to obtain Defendant’s last known
address. (R. Doc. 42). Defendant was served on November 14, 2016. (R. Doc. 48).
Defendant, proceeding pro se at the time, answered the allegations in the Amended
Complaint. (R. Doc. 51; see R. Doc. 55).
On April 6, 2017, the Court issued an order allowing counsel to enroll for Defendant. (R.
Doc. 60). Defendant then filed an Amended Answer and Affirmative Defenses. (R. Doc. 68).
On May 5, 2017, the Court issued a Scheduling Order providing, among other things, that
the deadline to complete all discovery is November 30, 2017; the deadline to file dispositive
motions is December 29, 2017; and that trial will commence on July 16, 2018. (R. Doc. 65).
On May 25, 2017, Defendant moved for summary judgment on the basis that Plaintiff
failed to exhaust all available administrative remedies prior to filing the suit as required by 42
U.S.C. § 1997e(a). (R. Doc. 70). Plaintiff has opposed the motion. (R. Doc. 72). There is no
dispute between the parties that on March 29, 2015, LSP received an Administrative Remedy
Procedure (“ARP”), assigned ARP No. LSP-2015-0807, from the Plaintiff regarding this lawsuit
as it pertains “to an alleged breach of security.” (R. Doc. 70-2 at 1; R. Doc. 72-1 at 1).
Defendant’s motion for summary judgment is pending before the district judge.
On June 5, 2017, Defendant filed her first motion to stay discovery. (R. Doc. 71). The
Court denied the motion. (R. Doc. 79).
On August 9, 2017, Defendant filed her second motion to stay discovery. (R. Doc. 82).
Law and Analysis
Rule 26(c) allows the Court to issue a protective order after a showing of good cause “to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1). Rule 26(c)’s “good cause” requirement indicates that the
party seeking a protective order has the burden “to show the necessity of its issuance, which
contemplates a particular and specific demonstration of fact as distinguished from stereotyped
and conclusory statements.” In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting
United States v. Garrett, 571 F.2d 1323, 1326 n. 3 (5th Cir. 1978)). “A trial court has broad
discretion and inherent power to stay discovery until preliminary questions that may dispose of
the case are determined.” Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987); see also Landry v.
Air Line Pilots Ass'n Int'l AFL-CIO, 901 F.2d 404, 436 n.114 (5th Cir. 1990) (“Trial courts
possess broad discretion to supervise discovery.”) (citation omitted).
In this renewed Motion, Defendant argues that discovery should be stayed in this action
because she is “now a resident of the state of Georgia” and “ongoing discovery will undoubtedly
create an undue burden and an undue expense for” Defendant and her family should she be
required to travel to Louisiana for a deposition. (R. Doc. 82-1 at 3).
Rule 30 of the Federal Rules of Civil Procedure does not prevent Plaintiff from
designating any place he chooses for the taking of Defendant’s deposition. That said, the Court
may require Defendant’s deposition to take place near her residence or place of employment to
protect her from undue burden or expense. See Fed. R. Civ. P. 26(c)(1); see also In re
Outsidewall Tire Litig., 267 F.R.D. 466, 471 (E.D. Va. 2010) (“[B]ecause a non-resident
defendant ordinarily has no say in selecting a forum, an individual defendant’s preference for a
situs for his or her deposition near his or her place of residence—as opposed to the judicial
district in which the action is being litigated—is typically respected. Accordingly, courts have
held that defendant-deponents located outside the forum district’s subpoena power should
ordinarily be deposed near their place of residence absent ‘exceptional or unusual
circumstances.’”); Grey v. Cont'l Mktg. Assocs., Inc., 315 F. Supp. 826, 832 (N.D. Ga. 1970)
(“Although the federal rules do not prevent plaintiff’s designating any place he chooses for the
taking of a defendant’s deposition, the cases indicate that it is presumed that a defendant will be
examined at his residence or at his place of business or employment; if another place is named
and defendant files a timely objection the objection should be sustained absent some unusual
circumstance to justify putting the defendant to such inconvenience.”). Accordingly, if Plaintiff
is unable to agree with the Defendant as to where the deposition will take place, and should
choose to notice Defendant’s deposition to take place in Louisiana, then Defendant may seek a
protective order requiring her deposition to be relocated to somewhere near her residence or
place of employment in Georgia.1 A stay of all discovery in this action, however, would be a
disproportionate form of relief to address the undue burden and expense resulting from a single
Defendant further argues that no additional discovery is required to rule on the pending
motion for summary judgment. (R. Doc. 82-1 at 3-4). Plaintiff, however, has asserted that
additional discovery is required to address the pending motion for summary judgment. (R. Doc.
72). Regardless of whether the district judge will require additional discovery to be conducted
prior to ruling on the summary judgment motion, the fact remains that Plaintiff commenced this
action on December 14, 2015, and the parties have not yet engaged in substantive discovery.
Accordingly, a stay of discovery in this action pending resolution of the motion for summary
judgment would unduly delay the resolution of this action.
Having considered the record as a whole, the Court’s general interests in control of its
docket and the fair and speedy administration of justice, as well as the current practice in this
district, the Court again concludes that Defendant has not met her burden of establishing that a
The Court is not certain, however, that this case does not present unusual or exceptional circumstances. Plaintiff is
proceeding as a pauper in this matter and the Defendant was present in this district when this action was
commenced. The Defendant’s relocation to Georgia was not mentioned in the first Motion to Stay, so the Court
assumes that the Defendant remained present in Louisiana at that time. During that time period, the Scheduling
Order was in place and Plaintiff attempted to obtain deposition dates for the Defendant on three occasions (R. Docs.
89-3 to 89-5). Discovery has never been stayed and the only request to do so was denied. All of this occurred
during the summer months, so any undue burden due to Defendant’s “young children currently enrolled in school in
Georgia” (R. Doc. 82-1 at 3) appears to be a result of Defendant and her counsel’s actions.
stay of discovery in this action is merited pending the resolution of her motion for summary
Based on the foregoing,
IT IS ORDERED that Defendant’s Second Motion to Stay Discovery (R. Doc. 82) is
DENIED. Nothing in this Order shall be interpreted as ruling on the merits of the pending
motion for summary judgment or otherwise staying a ruling on the pending motion for summary
judgment for the purpose of conducting additional discovery. Furthermore, nothing in this Order
shall be interpreted as granting a protective order regarding the location of Defendant’s
Signed in Baton Rouge, Louisiana, on August 31, 2017.
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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