Mesmer v. St. Mary's County et al
Filing
52
MEMORANDUM OPINION (c/m to Plaintiff 11/14/11 sat). Signed by Chief Judge Deborah K. Chasanow on 11/14/11. (sat, Chambers) Modified on 11/14/2011 to edit text. (rss, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
WILLIAM MESMER
:
v.
:
Civil Action No. DKC 10-1053
:
ROBERT REZZA, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this civil rights
case is the motion for relief from judgment or order and for
permissive
joinder
of
defendants
Mesmer, proceeding pro se.
discovery motions.
filed
(ECF No. 46).
(ECF Nos. 48, 51).
by
Defendant
William
Also pending are two
The issues have been
briefed, and the court now rules, no hearing deemed necessary.
Local Rule 105.6.
For the following reasons, the motion for
relief from judgment or order and for permissive joinder of
defendants will be granted in part and denied in part.
The
remaining motions will be granted, with some modification of the
requested scheduling order deadline extensions.
I.
Background
On April 28, 2010, Mesmer filed this action under 42 U.S.C.
§ 1983, alleging that several Maryland State Police officers
used excessive force in the course of arresting him in March
2009 for driving while intoxicated.
Mesmer further alleged that
those troopers and several corrections officers at St. Mary’s
County Detention Center denied him medical care for the injuries
he purportedly suffered as a result.
According to Mesmer, the
troopers,
corrections
various
state
conspired
to
surrounding
the
cover
officers,
up
the
and
events
officials
arrest
by
wrongfully convicting him in state court.
In two prior decisions, the court dismissed many of the
original
defendants
excessive
force
and
and
claims,
denial
of
leaving
medical
care
only
claims
against
State Police troopers Robert Rezza and Roger Redmond.
for
Maryland
(ECF Nos.
4, 24).
Of particular relevance here, the court determined that
judgment
as
a
matter
of
law
was
warranted
in
Maryland State Police and Corporal Jeffrey Linger.
at 24-25, 29).
favor
of
the
(ECF No. 24,
The court also denied a motion for joinder filed
by Mesmer after Linger’s dismissal from the case seeking to
rejoin Linger as a defendant and to join Barracks Commander
Michael Thompson as a new defendant.
(ECF No. 28).
On August 19, 2011, Mesmer filed the present “Motion for
Relief from Judgment or Order and for Permissive Join[d]er of
Defendants,” which seeks to set aside the court’s November 18,
2010, memorandum opinion and order granting summary judgment in
favor of the Maryland State Police, Linger, and the St. Mary’s
County corrections officers.
(ECF No. 46).
Mesmer’s motion
also attempts to rejoin the Maryland State Police, Linger, and
2
Thompson as defendants, and to join Corporal Jackson1 as a new
defendant.
(Id.).
(ECF No. 47).
II.
Defendants opposed on September 12, 2011.
Mesmer did not reply.
Analysis
A.
Permissive Joinder
Mesmer styles his motion in part as one for permissive
joinder.
He does not seek leave to amend.
In fact, this is the
second time that Mesmer has made this error in motions practice.
(See ECF No. 23).
Nevertheless, given his pro se status and the
nature of his claims, Mesmer’s motion for permissive joinder
will be construed as a motion for leave to amend.
See Eakins v.
Reed, 710 F.2d 184, 186 (4th Cir. 1983) (“[D]istrict courts are
under
an
pleading,
obligation
and
to
practice
ensure
and
that
joinder
technical
do
not
problems
prevent
of
the
prosecution of pro se civil rights actions.”).
Federal Rule of Civil Procedure 15(a) provides that courts
“should freely give leave [to amend] when justice so requires.”
Fed.R.Civ.P. 15.
Leave should be granted “[i]n the absence of .
. . undue delay, bad faith or dilatory motive on the part of the
movant,
repeated
failure
to
cure
deficiencies
by
amendments
previously allowed, undue prejudice to the opposing party by
1
Neither side provides the first name for Corporal Jackson.
3
virtue
of
allowance
amendment.”
of
the
amendment,
[or]
futility
of
Foman v. Davis, 371 U.S. 178, 182 (1962).
Rule 20 introduces certain additional considerations.
That
rule would permit Mesmer to join parties in a single action if
(1) a right to relief is asserted against the defendants with
respect to the same transaction or occurrence; and (2) a common
question of law or fact will arise in the action.
Fed.R.Civ.P.
20(a)(2); see also Hinson v. Norwest Fin. S.C., Inc., 239 F.3d
611,
618
(4th
discretion
Cir.
2001).
concerning
the
The
rule
permissive
grants
joinder
courts
of
“wide
parties.”
Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5
(4th Cir. 2007); accord Jeffcoat v. Blyth Eastman Paine Webber,
Inc.,
896
F.2d
(unpublished
1367,
table
1990
opinion)
WL
15556,
(“The
at
*3
provisions
(4th
for
Cir.
1990)
permissive
joinder . . . are very broad and the court is given discretion
to decide the scope of the civil action.” (internal quotations
omitted)).
The permissive joinder rule is to be construed in
view of its purposes “to promote trial convenience and expedite
the final determination of disputes.”
Aleman, 485 F.3d at 218
n.5 (quoting Saval v. BL, Ltd., 710 F.2d 1027, 1031 (4th Cir.
1983)).
If the addition of parties would not promote these
objectives - or if it would result in prejudice, expense, or
delay - the court may deny joinder.
4
Id.
Here, Mesmer retreads old territory in part by seeking to
join the Maryland State Police, Linger, and Thompson.
This
motion is Mesmer’s second attempt to join the Maryland State
Police as a defendant, and it is his third attempt to join
Linger and Thompson as defendants.
For the reasons set forth in
the court’s November 18, 2010, memorandum opinion (ECF No. 24),
judgment was entered in favor of the Maryland State Police and
Linger, and for the reasons set forth in the court’s February 9,
2011, memorandum opinion (ECF No. 28), Thompson was not joined.
Since then, Mesmer has provided neither legal justification nor
new factual allegations or evidence for why any of these three
parties should be rejoined.
The Maryland State Police, Linger,
and Thompson may not be joined as defendants.2
As to Corporal Jackson, in Mesmer’s motion, Mesmer newly
alleges that “Maryland State Trooper, Corporal Jackson, has been
positively identified by the Plaintiff as the Trooper who, while
acting under the color of law, slammed the Plaintiff’s head
through
the
wall
at
the
Leonardtown
MSP
Barracks
Plaintiff was in handcuffs and seated on a bench.”
at 2).
while
the
(ECF No. 46,
Corporal Jackson appears to be the “‘unknown’ Trooper”
2
While pro se plaintiffs are granted substantial leeway in
how they litigate a case, there are limits to the latitude
afforded even to them.
In light of his multiple, unsuccessful
attempts to join these parties as defendants, Mesmer is
cautioned against further attempts to rejoin them without any
good faith reasons.
5
who
was
involved
in
the
alleged
use
of
excessive
denial of medical care referred to in the complaint.
No. 1, at 14).
force
and
(E.g., ECF
Thus, Mesmer’s addition of Corporal Jackson as a
Defendant satisfies the requirement that relief sought against
all
joined
occurrence.”
defendants
relate
to
the
“same
transaction
or
See Fed.R.Civ.P. 20(a)(2).
Although Mesmer has not explained how exactly he came to
learn this information, the pending motion is the first time in
this case that he has specifically alleged involvement in the
events at issue by a “Corporal Jackson.”
Mesmer presumably
gathered this information through discovery,3 which the court
anticipated in its February 9, 2011, order.
Per that order, the
court finds that it is now expeditious to join Corporal Jackson
as
a
defendant,
as
determining
the
Furthermore,
despite
discovery
true
identity
Defendants’
appears
of
to
the
be
fruitful
unknown
protestations
in
trooper.
regarding
the
lack of context behind Mesmer’s new allegation, they do not
actually deny the existence of Corporal Jackson or his putative
participation in the events of March 27, 2009.
Mesmer’s motion
for permissive joinder will be granted in part accordingly.
3
On May 31, 2011, Mesmer filed a “Motion for Discovery
Inspection.”
(ECF No. 39).
On June 2, 2011, this motion
denied because discovery materials are not to be filed with
court.
(ECF No. 42).
The court notes, however, that
Mesmer’s motion, he sought the rank and photograph of an
Trooper “R. Jackson.” (ECF No. 39, at 1).
6
In
and
was
the
in
MSP
addition, given Mesmer’s pro se status, the complaint shall be
served on Corporal Jackson by the United States Marshal.
See
Fed.R.Civ.P. 4(c)(3).
B.
Relief from a Judgment or Order
Although
Mesmer
requests
that
he
be
relieved
from
the
court’s November 18, 2010, memorandum opinion and order pursuant
to
Federal
Rule
of
Civil
Procedure
60,
appropriately analyzed under Rule 54.
there
has
been
Fed.R.Civ.P. 60.
a
“final
judgment,
his
motion
is
more
Rule 60 governs where
order,
or
proceeding.”
The November 18, 2010, order was not a “final
judgment,” however.
See Fed.R.Civ.P. Rule 54(b) (“[A]ny order
or other decision, however designated, that adjudicates . . .
the rights and liabilities of fewer than all the parties . . .
may
be
revised
at
any
time
before
the
entry
of
a
judgment
adjudicating . . . all the parties’ rights and liabilities.”).
Thus,
Mesmer’s
motion
for
relief
from
judgment
is
better
construed as a motion for reconsideration of an interlocutory
order
under
Commercial
Rule
Builders,
54(b).
Inc.,
See
936
Fayetteville
F.2d
1462,
Investors
1469-70
(4th
v.
Cir.
1991).
The precise standard governing a motion for reconsideration
of an interlocutory order is unclear.
Id. at 1472.
While the
standards articulated in Rules 59(e) and 60(b) are not binding
in an analysis of Rule 54(b) motions, see Am. Canoe Ass’n v.
7
Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts
frequently look to these standards for guidance in considering
such motions, Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d
559, 565-66 (M.D.N.C. 2005).
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions.
Courts
will reconsider an interlocutory order in
the following situations:
(1) there has
been an intervening change in controlling
law; (2) there is additional evidence that
was not previously available; or (3) the
prior decision was based on clear error or
would work manifest injustice.
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft
Foods., Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md.
Aug. 4, 2010) (applying this three-part test when evaluating a
motion for reconsideration under Rule 54(b)).
reconsideration
under
Rule
54(b)
may
not
A motion for
be
used
merely
reiterate arguments previously rejected by the court.
to
Beyond
Sys., Inc., 2010 WL 3059344, at *2.
The crux of Mesmer’s argument for relief appears to be
based
on
new
evidence
of
committed by Defendants.
Defendants
point
out
“fraud,
perjury
and
(ECF No. 46, at 2).
that
“[a]side
from
bald
conspiracy”
In response,
allegations,
Plaintiff has presented no evidence to support any ground . . .
8
set forth in his motion.”
(ECF No. 47, at 2-3).
Here, Mesmer
has not identified any change in controlling law, additional
evidence that was not previously available, or clear error that
would alter the court’s November 18, 2010, memorandum opinion
and order.
Indeed, he has attached no documents, affidavits, or
declarations to his motion.
Instead, Mesmer proposes to proffer
evidence via oral argument before the court.
4).
(ECF No. 46, at
Without at least a sworn statement describing what new
evidence he purports to have, how he came to have it, and why he
could
not
have
gathered
that
evidence
prior
to
the
court’s
November 18, 2010, decision, however, Mesmer’s request for an
evidentiary hearing is denied.
Even if Mesmer had verified his motion for relief, his
request for a hearing and, consequently, his motion would be
denied.
The only new piece of information Mesmer purports to
have is the last name of the officer who actually “slammed the
Plaintiff’s head through the wall” when Mesmer was held at the
barracks — Corporal Jackson.
(ECF No. 46, at 2).
This new
information, although relevant to his motion for joinder, is
completely unrelated to any of the claims or specific Defendants
considered
order.
order
in
the
November
18,
2010,
memorandum
opinion
and
Accordingly, Mesmer’s motion for relief from judgment or
—
construed
as
a
motion
for
interlocutory order — will be denied.
9
reconsideration
of
an
C.
Discovery Motions
On September 14, 2011, Defendants filed a motion to compel
discovery responses.
(ECF No. 48).
Specifically, Defendants
seek a response from Mesmer to their May 24, 2011, discovery
requests.
Per Federal Rule 37(a) and Local Rules 104.7 and
104.8, Defendants have in good faith attempted to confer with
Mesmer
regarding
the
dispute,
and
they
have
provided
certificate detailing their efforts.
(ECF No. 48-8).
Defendants’
failed
diligence,
Mesmer
has
to
a
Despite
provide
any
responses to their requests nor has he timely objected to their
requests.
compel,
Moreover,
thus
Mesmer
providing
no
has
not
explanation
opposed
for
the
motion
to
his
delinquency.
Accordingly, the motion to compel will be granted.
Mesmer will
be directed to respond to Defendants’ May 24, 2011, discovery
requests by December 14, 2011.
Due to this discovery dispute, on September 26, 2011, the
amended deadline for discovery,4 Defendants filed a motion to
modify the scheduling order to extend the time for discovery and
the filing of pretrial motions.
opposed this motion either.
(ECF No. 51).
Mesmer has not
Federal Rule 16(b)(4) states that
“[a] schedule may be modified only for good cause and with the
4
The scheduling order originally set June 24, 2011, as the
close of discovery.
(ECF No. 30).
That deadline was
subsequently extended to September 26, 2011. (ECF No. 45).
10
judge’s consent.”
“good
cause”
The primary consideration for Rule 16(b)’s
standard
is
the
movant’s
diligence.
Lack
of
diligence and carelessness are the “hallmarks of failure to meet
the good cause standard.”
W. Va. Hous. Dev. Fund v. Ocwen Tech.
Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va. 2001).
“‘[T]he
focus of the inquiry is upon the moving party’s reasons for
seeking
modification.
If
inquiry should end.’”
that
party
was
not
diligent,
the
Marcum v. Zimmer, 163 F.R.D. 250, 254
(S.D.W.Va. 1995) (quoting Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609 (9th Cir. 1992)).
The court also considers
whether the non-moving party could be prejudiced by the delay,
the length of the delay, and whether the movant acted in good
faith.
Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757,
768–69 (D.Md. 2010).
Here, as noted, Defendants have been fully
diligent in their efforts to obtain responses to their discovery
requests, and Mesmer has utterly failed to respond in kind.
party’s
failure
to
respond
to
discovery
requests
or
A
assert
timely objections to those requests constitutes good cause for
modifying a scheduling order.
See, e.g., Heil v. Belle Starr
Saloon & Casino, No. CIV. 09–5074–JLV, 2011 WL 1256859, at *11
(D.S.D. Mar. 30, 2011).
Furthermore, there is no hint of bad
faith on the part of Defendants, and Mesmer has indicated no
prejudice that he would suffer should the scheduling order be
modified.
11
Accordingly, the motion to modify the scheduling order will
be
granted.
accommodate
The
scheduling
Defendants’
request
order
as
will
well
as
be
modified
to
the
addition
of
Corporal Jackson as a Defendant as follows:
•
January 13, 2012:
Depositions and other discovery
must be completed.
Interrogatories and requests for
production of documents must be served on the opposing
party early enough to allow a response before this
deadline.
•
January 13, 2012:
be filed.
Post-discovery status report must
•
February 13, 2012:
be filed.
Dispositive pretrial motions must
III. Conclusion
For
the
foregoing
reasons,
the
motion
for
relief
from
judgment or order and for permissive joinder of defendants filed
by Defendant Mesmer will be granted in part and denied in part.
The remaining motions will be granted, with modification.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
12
A
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