Panowicz v. Hancock et al

Filing 35

MEMORANDUM AND ORDER DENYING 29 Plaintiff's motion to compel Rule 26(f) conference and 30 motion for protective order and MODIFYING the scheduling order to reflect a new deadline for completion of all discovery and submission of a status report by December 13, 2013, and submission of all motions for summary judgment by January 10, 2014 (c/m to Plaintiff 9/27/13 sat). Signed by Chief Judge Deborah K. Chasanow on 9/27/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARK A. PANOWICZ
:
v.

:

Civil Action No. DKC 11-2417

:
SHARON L. HANCOCK
:
MEMORANDUM OPINION AND ORDER
By

a

memorandum

opinion

and

order

issued

September

12,

2012, the court granted in part and denied in part a motion to
dismiss filed by Defendant Sharon L. Hancock.

Following the

denial of a motion for reconsideration filed by pro se Plaintiff
Mark A. Panowicz, Defendant filed an answer and a scheduling
order was entered.

On June 11, 2013, Plaintiff filed a “motion

to correct or clarify court record and provide relief under
Federal Rule of Civil Procedure 60(b),” challenging the denial
of his motion for reconsideration.
motion
appeal,

was

itself

which

is

denied,
presently

(ECF No. 23).

Plaintiff
pending

noted

before

an
the

When that

interlocutory
United

States

Court of Appeals for the Fourth Circuit.
On July 18, 2013, Plaintiff filed the pending “motion to
compel Defendant to confer and complete discovery plan under
Fed.R.Civ.P. 26(f)” (ECF No. 29) and motion for protective order
(ECF

No.

30).

Upon

the

court’s

direction,

Defendant

filed

opposition papers on August 21.
a reply on September 9.

(ECF No. 33).

Plaintiff filed

(ECF No. 34).

The combined motion papers reflect that the parties were
negotiating a discovery plan through a series of emails and
phone conversations up to the time Plaintiff noted his appeal.
According to Defendant, “[b]ecause Plaintiff chose to file an
appeal,

this

Court

no

long

has

full

jurisdiction

over

this

matter – that jurisdiction rests with the Fourth Circuit Court
of Appeals pending its resolution of the appeal.”
at 5).

(ECF No. 33,

Thus, Defendant has apparently discontinued all contact

with Plaintiff and ceased discovery pending appellate review.
Plaintiff

insists

that

the

interlocutory

appeal

does

not

automatically operate as a stay in the case and that the Rule
26(f)

conference

propounded.

must

be

completed

before

discovery

is

He seeks an order compelling Defendant to reengage

regarding a discovery plan and a protective order “to stay any
obligation . . . to answer premature discovery requests . . .
until Fed.R.Civ.P. 26(f) requirements are met[.]”

(ECF No. 30-

1, at 1).
As Judge Stamp explained in United States v. Harris, Crim.
No. 5:07CR22, 2007 WL 3348465, at *1 (N.D.W.Va. Nov. 7, 2007):
As a general rule, “a federal district
court and a federal court of appeals should
not attempt to assert jurisdiction over a
case simultaneously.”
Griggs v. Provident
Discount Co., 459 U.S. 56, 58 (1982).
2

Indeed, “[t]he filing of a notice of appeal
is an event of jurisdictional significance –
it confers jurisdiction on the court of
appeals and divests the district court of
its control over those aspects of the case
involved in the appeal.”
Id.
Nonetheless,
a few narrow exceptions exist to this
jurisdictional transfer principle, such as
“where the defendant frivolously appeals,
see United States v. LaMere, 951 F.2d 1106,
1109 (9th Cir. 1991) (per curium), or takes
an
interlocutory
appeal
from
a
nonappealable order, see United States v.
Green, 882 F.2d 999, 1001 (5th Cir. 1989).”
United States v. DeFries, 129 F.3d 1293,
1302-03 (D.C. Cir. 1997).
Here,

Plaintiff

has

noted

an

appeal

“from

the

final

judgment entered in this action on the 17th day of May, 2013,”
i.e., the order denying his motion for reconsideration and for
leave

to

however,

amend
was

his

not

a

complaint.
“final

(ECF

judgment,”

No.
as

26).

That

Plaintiff

order,

suggests.

Rather, it was an interlocutory order over which the Fourth
Circuit
here.

lacks

jurisdiction,

absent

exceptions

not

applicable

“A substantial body of precedent indicates that a notice

of appeal does not divest a district court of jurisdiction when
the appeal is taken from a non-appealable order or is otherwise
patently frivolous.”

Adam v. Wells Fargo Bank, N.A., Civ. No.

ELH-09-2387, 2011 WL 4592401, at *4 (D.Md. Sept. 30, 2011).
Pursuant to 28 U.S.C. § 1292(b), an appellate court may, in its
discretion, consider an interlocutory appeal if, inter alia, the
appeal

is

filed

“within

ten

days

3

after

the

entry

of

the

order[.]”

Plaintiff’s notice of appeal, however, was not filed

within ten days of the denial of his motion for reconsideration;
thus, his appeal is also untimely.
motion

for

Plaintiff’s

reconsideration
notice

of

was

appeal

Because the ruling on the

not

has

no

immediately

appealable,

jurisdictional

effect.

Consequently, Defendant’s stated justification for refusing to
proceed with the Rule 26(f) conference is misplaced.
So, too, however, are the arguments advanced by Plaintiff
in support of his motions.

Pursuant to Local Rules 103.9(b) and

104.4, a Rule 26(f) conference is not required unless otherwise
ordered by the court, and no such order has been issued in this
case.

Because

a

Rule

26(f)

conference

is

not

required,

Plaintiff’s motion to compel such conference will be denied.
His motion for a protective order, which is premised on Rule
26(d)(1) (no discovery prior to Rule 26(f) conference), will
also be denied.

The deadlines for completion of discovery,

submission of a status report, and filing of motions for summary
judgment will be extended.
Accordingly, it is this 27th day of September, 2013, by the
United

States

District

Court

for

the

District

of

Maryland,

ORDERED that:
1.

Plaintiff’s

motion

to

compel

Rule

26(f)

conference

(ECF No. 29) and motion for protective order (ECF No. 30) BE,
and the same hereby ARE, DENIED;
4

2.
reflect

The schedule BE, and the same hereby IS, MODIFIED to
a

new

submission

of

deadline
a

status

for

completion

report

by

of

all

December

discovery
13,

2013,

and
and

submission of all motions for summary judgment by January 10,
2014; and
3.
Memorandum

The

clerk

Opinion

is
and

directed
Order

to

to

transmit

counsel

for

copies

of

Defendant

this
and

directly to Plaintiff.

/s/
DEBORAH K. CHASANOW
United States District Judge

5