Issaquena and Warren Counties Land Company, LLC et al v. Warren County, Mississippi Board of Supervisors et al

Filing 622

ORDER granting in part and denying in part 573 Motion for Discovery; granting 608 Motion to Clarify, and setting deadlines for discovery and supplemental briefing. Signed by Honorable David C. Bramlette, III on 10/26/2012 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ISSAQUENA AND WARREN COUNTIES LAND
COMPANY, LLC, ET AL.
VS.

PLAINTIFFS/
COUNTER-DEFENDANTS

CIVIL ACTION NO. 5:07-cv-106(DCB)(JMR)

WARREN COUNTY, MISSISSIPPI BOARD
OF SUPERVISORS, ET AL.

DEFENDANTS/
COUNTER-PLAINTIFFS

ORDER
This cause is before the Court on the plaintiffs/counterdefendants’ motion to reopen discovery (docket entry 573) and the
plaintiffs/counter-defendants’ motion to clarify (docket entry
608).

On October 22, 2012, the Court held a hearing in this matter

with regard to these motions, and now finds as follows:
On April 4, 2012, Chief Magistrate Judge Roper held a status
conference

at

the

request

of

the

defendants.

During

the

conference, the plaintiffs asserted that they needed to conduct
discovery related to the Warren County defendants’ assertion of the
Noerr-Pennington defense to the plaintiffs’ RICO claims and claims
under

42

U.S.C.

§

1983.

(The

Warren

County

defendants

had

previously filed a motion for summary judgment on the RICO claims
and claims under § 1983 - see docket entry 495).
In light of the Warren County defendants’ motion for summary
judgment, and in anticipation of a similar motion to be filed by
Paw Paw, Magistrate Judge Roper ordered that (1) Paw Paw would have

until April 20, 2012, to file its motion for summary judgment (an
extension of time was subsequently granted and Paw Paw’s motion was
filed on April 27, 2012); and (2) should plaintiffs seek discovery
regarding their Noerr-Pennington defense, they would have until
April 13, 2012, to file a Rule 56(d) motion to obtain specific
discovery needed for that defense. (Minute Entry Order of April 4,
2012).
On April 13, 2012, instead of filing a Rule 56(d) motion, the
plaintiffs filed a motion to reopen discovery (docket entry 573)
pursuant to Rule 16(b)(4) (docket entry 573), seeking a more
general opening of discovery, including (1) an expanded 30(b)(6)
deposition of Warren County, Mississippi; depositions of John McKee
“and two others with knowledge relevant to the amendment and/or
enforcement of the Warren County Subdivision Ordinance in place on
April 14, 2003;” and “[f]ive interrogatories and five requests for
production to each of the following defendants: Warren County,
Mississippi, Richard Johnson, Richard George, Paw Paw Island Land
Co., Inc. and John Lindigrin.” (Motion to Reopen Discovery, p. 4).
The defendants responded to the plaintiffs’ motion, asserting
that the plaintiffs did not meet the requirements of Rule 56(d).
In addition, on July 19, 2012, defendant Warren County moved to
strike the plaintiffs’ re-notice of the Rule 30(b)(6) deposition
(docket entry

601).

Magistrate Judge Roper granted the motion to

strike on August 24, 2012 (docket entry 607), finding that the

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plaintiffs did not specifically seek to expand or change the
subject matter of the Rule 30(b)(6) deposition during the April 4,
2012, conference, or in their April 13, 2012, motion to reopen
discovery.
The plaintiffs filed a motion to clarify their motion to
reopen discovery on August 28, 2012 (docket entry 608).

In this

motion, the plaintiffs “seek to clarify their intent to request an
expansion of the Rule 30(b)(6) deposition of Warren County to
include certain designations relevant to the Noerr-Pennington
defense.”

Motion to Clarify, p. 1.

The plaintiffs seek to expand

the scope of the 30(b)(6) deposition in order to:
(1) identify all bas[e]s for Defendants’ actions at issue
in the case; (2) discover information or evidence that
could lead [] a juror to conclude that Defendants had no
objectively reasonable hope of success on the merits in
pursuing these actions and/or (3) discover information or
evidence that could lead a juror to conclude that
Defendants’ purpose in these actions was something other
than the relief requested.
Motion to Clarify, p. 3.
Specifically, the plaintiffs seek permission to include the
following designations in the re-notice of the deposition:
a. All facts and circumstances surrounding the amendment
of the Warren County Subdivision Ordinance on October,
2004 including but not limited to the specific changes
made in the amendment, the reason for those changes, all
statements made to and/or published by the press about
the amendment, any and all public hearings pertaining to
the amendment and any changes in enforcement of said
ordinance by Warren County, Mississippi as a result of
the amendment.
b. The basis for Warren County, Mississippi’s claim that
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the portion of Paw Paw Road beyond its initial .13 miles
was public as asserted in Warren County, Mississippi vs.
Issaquena and Warren Counties Land Co., LLC, et al.; In
the County Court of Warren County, Mississippi; Cause No.
2005-0449-CO and in the counterclaim filed in Warren
County, Mississippi vs. Issaquena and Warren Counties
Land Co., LLC, et al.; In the County Court of Warren
County, Mississippi; Cause No. 2005-0449-CO.
c. Any and all policies and/or procedures followed and/or
adopted by Warren County, Mississippi relative to
enforcement of and/or prosecution for violations of the
Warren County Subdivision and/or Warren County Flood
Plain Management Ordinances. (Included in original notice
of May 13, 2009 – Docket 288).
d. Other than the proceedings instituted against
Issaquena and Warren Counties Land Company, LLC and/or
members thereof, every instance in the five years prior
to May 13, 2009 wherein Warren County, Mississippi
pursued criminal and/or civil enforcement of the Warren
County Subdivision Ordinance and/or Warren County Flood
Plain Management Ordinance. (Included in original notice
of May 13, 2009 – Docket 288).
Motion to Clarify, pp. 2-3.
After hearing oral arguments of counsel at the October 22
hearing, and having carefully considered the motions and responses,
the Court finds as follows:
The

plaintiffs

shall

be

allowed

additional

discovery

on

matters relating to the defendants’ Noerr-Pennington defense, but
only to the extent that their motion to reopen discovery (docket
entry 573) and motion to clarify (docket entry 608) can be said to
satisfy the requirements of Rule 56(d).

Therefore, the plaintiffs

shall be allowed to amend their 30(b)(6) notice of deposition to
include designations (a) through (d) in the motion to clarify.

As

for the motion to reopen discovery, the specificity required by
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Rule 56(d) is not met except as to one deposition, i.e., the
“deposition[] of John McKee ... [concerning his] knowledge relevant
to

the

amendment

and/or

enforcement

of

the

Warren

County

Subdivision Ordinance in place on April 14, 2003.”
Accordingly,
IT
motion

IS
to

HEREBY

ORDERED

clarify

that

(docket

plaintiffs/counter-defendants’

entry

608)

is

GRANTED,

and

the

plaintiffs/counter-defendants are allowed to amend their 30(b)(6)
notice of deposition to include the following designations:
(a) All facts and circumstances surrounding the amendment of
the Warren County Subdivision Ordinance on October, 2004 including
but not limited to the specific changes made in the amendment, the
reason for those changes, all statements made to and/or published
by the press about the amendment, any and all public hearings
pertaining to the amendment, and any changes in enforcement of said
ordinance

by

Warren

County,

Mississippi

as

a

result

of

the

amendment;
(b) The basis for Warren County, Mississippi’s claim that the
portion of Paw Paw Road beyond its initial .13 miles was public as
asserted in Warren County, Mississippi vs. Issaquena and Warren
Counties Land Co., LLC, et al. in the County Court of Warren
County,

Mississippi,

Cause

No.

2005-0449-CO;

and

in

the

counterclaim filed in Warren County, Mississippi vs. Issaquena and
Warren Counties Land Co., LLC, et al., in the County Court of

5

Warren County, Mississippi, Cause No. 2005-0449-CO.
(c) Any and all policies and/or procedures followed and/or
adopted by Warren County, Mississippi relative to enforcement of
and/or prosecution for violations of the Warren County Subdivision
and/or Warren County Flood Plain Management Ordinances. (Included
in original notice of May 13, 2009 – Docket 288).
(d) Other than the proceedings instituted against Issaquena
and Warren Counties Land Company, LLC and/or members thereof, every
instance in the five years prior to May 13, 2009 wherein Warren
County, Mississippi pursued criminal and/or civil enforcement of
the Warren County Subdivision Ordinance and/or Warren County Flood
Plain Management Ordinance. (Included in original notice of May 13,
2009 – Docket 288);
FURTHER ORDERED that the plaintiffs/counter-defendants’ motion
to reopen discovery (docket entry 573) is GRANTED IN PART to allow
the deposition of John McKee concerning his knowledge relevant to
the amendment and/or enforcement of the Warren County Subdivision
Ordinance in place on April 14, 2003; GRANTED IN PART as to the
30(b)(6) deposition, but only as set forth in paragraphs (a)
through (d) above; and DENIED IN PART as to all other discovery
requested therein;
FURTHER

ORDERED

that

the

plaintiffs

must

notice

the

depositions promptly and forthwith, and all preparations must be
taken so that if the parties are unable to reach a settlement

6

agreement at the settlement conference set for November 7, 2012,
the 30(b)(6) deposition will proceed to take place on or prior to
November 15, 2012.

All parties shall supplement their pending

dispositive motions, responses and briefs on or prior to November
26, 2012.
SO ORDERED, this the 26th day of October, 2012.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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