Anderson v. Furst et al

Filing 107

AMENDED ORDER re: 82 MOTION to Compel Plaintiff's Deposition and to Extend Time to File Motion for Summary Judgment with Brief in Support and Certificate of Service EXPEDITED CONSIDERATION REQUESTED filed by Nathan Ellis, Michael Thomas, Colter Furst, 80 MOTION filed by Jerry Anderson, 79 MOTION TO EXTEND Discovery Cutoff with Brief in Support and Certificate of Service filed by Nathan Ellis, Michael Thomas, Colter Furst.--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY ANDERSON,
Plaintiff
v.

Case No. 2:17-12676
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti

COLTER FURST,
MICHAEL THOMAS, and
NATHAN ELLIS
Defendants.
___________________________________/
AMENDED ORDER GRANTING IN PART AND DENYING IN PART: (1)
PLAINTIFF’S MOTION FOR THE U.S. MARSHAL TO SERVE
SUBPOENAS (DE 80); (2) DEFENDANTS’ MOTON FOR EXTENSION OF
DISCOVERY CUTOFF (DE 79); AND (3) DEFENDANTS’ EXPEDITED
MOTION TO COMPEL PLAINTIFF’S DEPOSITION AND TO EXTEND
TIME TO FILE MOTION FOR SUMMARY JUDGMENT ON THE BASIS
OF QUALIFIED IMMUNITY (DE 82), AND DIRECTING THE USMS TO
SERVE SUBPOENAS AS INDICATED HEREIN
Plaintiff, a state prisoner who is proceeding in forma pauperis, brings this
prisoner civil rights lawsuit against three defendants, Colter Furst, Michael
Thomas and Nathan Ellis, all Michigan State Police Troopers, alleging they
violated his rights under the Fourth Amendment by using excessive force during
his arrest on September 4, 2015. (DE 1.) He seeks injunctive and declaratory

relief, in addition to compensatory and punitive damages. (Id.) All Defendants
have been served and have filed their Answer. (DE 14.)
A. Current Scheduling Order
The scheduling order in this action currently has a discovery cut-off of
December 17, 2018, a deadline of January 14, 2019 by which to file a motion for
summary judgment on the basis of qualified immunity, and a deadline of March
15, 2019 by which to file all other motions for summary judgment, if any. (DE 63.)
B. Pending Motions
On December 17, 2018, the date of the current discovery deadline,
Defendants filed a motion for extension of the discovery cut-off, seeking an
extension of time to January 4, 2019, to allow Defendants to take Plaintiff’s
deposition and to allow Defendants to answer Plaintiff’s recently served
interrogatories. (DE 79.)
On January 7, 2019, Plaintiff filed a motion for the U.S. Marshal to serve
four subpoenas beyond the discovery cutoff “for good cause where he failed to act
because of excusable neglect.” (DE 80.) Plaintiff asserts that he requested
subpoenas in November and December 2018, but did not receive the subpoenas
until “on or about 12-26-18.” (Id.) Plaintiff requests to have the four subpoenas
served by the U.S. Marshal. (Id.)

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On January 14, 2019, the date of the current dispositive motion deadline,
Defendants filed an expedited motion to compel Plaintiff’s deposition and to
extend the time to file a motion for summary judgment on the basis of qualified
immunity. (DE 82.) Defendants argue that Plaintiff’s deposition had to be
rescheduled “due to other commitments both professionally and personally,” and
that when Plaintiff appeared for his scheduled January 3, 2019 deposition, he
refused to answer questions because discovery closed on December 17, 2018 and
the motion to extend had not yet been ruled on. (Id.) Defendants therefore seek an
order compelling Plaintiff’s deposition and to extend the deadline to file motions
for summary judgment until 14 days after Plaintiff’s deposition. (Id.)
C. Order
For good cause shown, Plaintiff’s motion for the U.S. Marshal to serve
subpoenas and Defendants’ motion for extension of discovery cutoff (DE 79) and
expedited motion to compel Plaintiff’s deposition and to extend time to file motion
for summary judgment on the basis of qualified immunity (DE 82) are GRANTED
IN PART AND DENIED IN PART as follows:
 Defendants may take Plaintiff’s deposition on or before FEBRUARY 4,
2019. Defendants shall be permitted to take the deposition of Plaintiff for all
purposes allowed by the Federal Rules of Civil Procedure, and the
deposition may occur either in person, by telephone, or via video
teleconference, at Defendants’ option and consistent with the requirements
and needs of Plaintiff’s place of incarceration.

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 Further, the Court DIRECTS the USMS to serve the four subpoenas at ECF
No. 80, Page IDs 403-418, by certified mail, return receipt requested, on the
persons/entities at the addresses listed on each of the subpoenas. Costs of
service are waived.
 However, the December 17, 2018 discovery cutoff is otherwise not extended
for any other purpose.
 Defendants must file any motion to dismiss under Fed. R. Civ. P. 12 or any
motion raising the defense of qualified immunity on or before FEBRUARY
25, 2019.
 The parties shall file all other dispositive motions, if any, on or before
AUGUST 1, 2019.
IT IS SO ORDERED.
Dated: June 10, 2019

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 June 10, 2019, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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