Sroka v. Wal-Mart Stores East LP
ORDER DENYING 40 Motion to Amend/Correct; granting in part and denying in part 41 Motion to Extend ; granting in part and denying in part 42 Motion to Compel; granting in part and Denied as Moot 44 Motion for Protective Order; taking under advisement 46 Motion to Strike--Signed by Magistrate Judge Anthony P. Patti. (MWil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-10149
District Judge Laurie J. Michelson
Magistrate Judge Anthony P. Patti
ORDER DETERMINING MOTIONS (DEs 40, 41, 42, 44) and TAKING
UNDER ADVISEMENT DEFENDANT’S MOTION TO STRIKE (DE 46)
This matter is before the Court for consideration of several motions, each of
which has been referred to me and noticed for hearing. On the date set for hearing,
attorneys Leland T. Schmidt, Nicole M. Wright and Katharine Gagen McCarthy
appeared in my courtroom, and I entertained approximately three hours of oral
argument. For the reasons stated on the record, all of which are incorporated
herein by reference:
Plaintiff’s September 1, 2017 motion to file an amended
complaint (DE 40) is DENIED.
Plaintiff’s September 1, 2017 third motion to extend all dates
(DE 41) is DENIED as framed in his prayer for relief (see DE
41 at 14-15); however, the motion is GRANTED to the extent
it seeks the following, specific and limited discovery:
Either party may take the deposition of Dedrick Davon
Sewell, no later than two weeks before trial, provided
that the party taking the deposition has made ongoing,
diligent efforts to locate Mr. Sewell and subpoena him
Either party may take the deposition of Ray Anthony
Eddington, whenever his appearance can be secured,
provided that the party taking the deposition has made
ongoing, diligent efforts to locate Mr. Eddington and
subpoena him for deposition.
Plaintiff may take the depositions of Officers B.
Fitzsimmons and M. Killingbeck, no later than December
14, 2017. Each deposition shall be limited to one hour,
of which Plaintiff may use 40 minutes and Defendant
may use 20 minutes to cross-examine.
Additionally, noting that the discovery deadline has already
been extended three times (see DEs 8, 15, 22, 35), that the
number of depositions has already exceeded the limitation
permitted by Fed. R. Civ. P. 30 (see DE 44 at 2 ¶ 3), and that
the maximum number of interrogatories permitted under Fed.
R. Civ. P. 33(a)(1) has already been served by Plaintiff (as
conceded at oral argument), no further extensions of discovery
will be granted and no additional discovery will be permitted,
beyond what is specified in this Order.
Plaintiff’s September 1, 2017 motion to compel Defendant to
respond to the request to produce, answer Plaintiff’s
interrogatories pursuant to Fed. Rules Civ. P. 37 and 26(b) and
provide discovery material (DE 42) is: (a) DENIED, to the
extent it seeks answers / responses to the discovery served on
May 19, 2017 beyond those that Defendant served on July 14,
2017; (b) DEFERRED, to the extent it seeks a Fed. R. Civ. P.
30(b)(6) deposition, which issue is addressed in the Court’s
ruling on DE 44 (see ¶ 4 below); and (c) GRANTED IN
PART, to the extent it seeks an inspection by its expert, Patrick
Murphy. Such inspection will be permitted only if Defendant’s
motion to strike Murphy as an expert is denied and the case
survives the pending dispositive motion (see DEs 45, 46), in
which case Defendant shall make the site available for
inspection no later than 30 days before trial and the inspection
and deposition of Plaintiff’s expert shall take place within a
two-day period. Specifically, as delineated in Plaintiff’s motion
(see DE 42 at 3-4, Pg ID 380-381):
Defendant need not permit the inspection described at
Subsections a and d;
Defendant must allow the inspection described at
Subsections b, c, e, f, g, h, i, j, k, m and n;
Defendant must provide the “Camera Plot Diagram”
information requested with respect to still cameras
(point-to-zoom diagram information having already been
provided), if available, as listed in Subsection l(1)-l(8);
Defendant must permit inspection of and provide camera
plot diagrams (if available and to the extent not
previously provided in compliance with the preceding
paragraph “c” or otherwise) for all cameras in the main
aisle of the store between the location of the attack, i.e.,
the dairy aisle, and the front door as described in
In executing this inspection, no destructive testing may occur;
Plaintiff’s expert may only visually inspect the described areas,
as well as take measurements and photos of the same. In light
of the fact that this information touches upon Defendant’s
security and fraud prevention operations, Defendant may
designate some or all of this information as “confidential” or
“attorneys’ eyes only” under the existing protective order (DE
9), if there is a good faith basis for doing so. Finally, no costs
are awarded as to this motion, neither party having prevailed in
full. See, Fed. R. Civ. P. 37(a)(5).
Defendant’s September 7, 2017 motion for a protective order
pursuant to Fed. R. Civ. P. 26(c) (DE 44) is GRANTED to the
extent it relates to Plaintiff’s August 7, 20171 notice of taking
deposition duces tecum under Fed. R. Civ. P. 30(b)(6);
however, it is DENIED AS MOOT to the extent it sought a
protective order prohibiting Plaintiff from proceeding with any
additional discovery in this matter, as this is addressed in the
Court’s prior ruling on Plaintiff’s motion to compel (DE 42; see
¶ 2 above). Finally, no costs are awarded as to this motion,
neither party having prevailed in full. See, Fed. R. Civ. P.
26(c)(3) and 37(a)(5).
Defendant’s September 7, 2017 motion to strike Plaintiff’s
proposed expert witness J. Patrick Murphy (DE 46) is TAKEN
IT IS SO ORDERED.
Dated: November 17, 2017
s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on November 17, 2017, electronically and/or by U.S. Mail.
Case Manager for the
Honorable Anthony P. Patti
The record shows a September 1, 2017 date for this notice (DE 44-3 at 3), which
is two weeks after the discovery deadline; however, the parties agreed at oral
argument that the notice was actually served on August 7, 2017, on the actual
discovery cut-off date. (See also DE 44-4 at 3 ¶ 1.)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?