Sanders v. City of Natchez, MS et al

Filing 44

ORDER granting 29 Motion to Extend Deadlines; denying as moot 28 Motion to Extend Deadlines; granting in part and denying in part 31 Motion to Compel; and denying 33 Motion to Compel. Signed by Magistrate Judge Michael T. Parker on September 13, 2018. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
EVERETT SANDERS

PLAINTIFF

v.

CIVIL ACTION NO. 5:17-cv-99-DCB-MTP

CITY OF NATCHEZ, MS, ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on Plaintiff’s Motions to Extend Deadlines [28] [29],
Defendants’ Motion to Compel [31], and Plaintiff’s Motion to Compel [33].
Plaintiff’s Motions to Extend Deadlines [28] [29]
On February 11, 2018, the Court entered a Case Management Order [11], which set a
discovery deadline of September 3, 2018, and a motions deadline of September 17, 2018. On
August 21, 2018, Plaintiff filed his Amended Motion to Extend Deadlines [29], requesting that
the Court extend the discovery and motions deadlines.1
On August 28, 2018, the Court conducted a telephonic conference with the parties to
discuss, inter alia, the pending Motions [28] [29]. The parties informed the Court that they had
been unable to reach an agreement regarding the scheduling of depositions and that none of the
parties had been deposed. Following the conference, the Court directed the parties to confer and
schedule depositions in order that all depositions will be completed on or before September 28,

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In his original Motion to Extend Deadlines [28], Plaintiff also requested extensions of the
expert designation deadlines. Plaintiff, however, explained during a conference with the Court
that he is not seeking extensions of those deadlines, and in the Amended Motion [29], Plaintiff
does not request such extensions.
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2018. See Order [30]. Thereafter, the parties noticed depositions for September 17, 24, and 26.
See Notices [37] [38] [39] [40] [41] [42].2
On September 11, 2018, however, the parties filed a Joint Report [43] stating that after
the parties scheduled depositions for September 17, 24, and 26, Plaintiff’s counsel determined
that she has a conflict on September 24 and now wishes to postpone the depositions scheduled
for that day (Plaintiff and Defendant Davis) to either October 1 or October 3.
Having considered the parties’ submissions and the record and having conferred with the
parties, the Court finds that extensions of the discovery and motions deadlines should be granted.
However, considering the low priority given to this case during the discovery period set forth in
the Case Management Order [11] and the fact that a lengthy extension would likely require a
continuance of the trial, the Court will not extend the discovery deadline past September 26,
2018.3
Accordingly, the Court orders as follows:
The depositions previously noticed by the parties, including the depositions of
Plaintiff and Defendant Davis scheduled for September 24, 2018, shall proceed as
set forth in Notices [37] [42]. The parties and their counsel shall make whatever
arrangements are necessary to complete the depositions as noticed.
The discovery deadline is extended to September 26, 2018, and the deadline for
motions (other than motions in limine or discovery motions) is extended to October
10, 2018.
The parties should note that they have received the maximum time extensions
possible for this trial calendar and should proceed accordingly.

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Plaintiff noticed the following depositions: Defendant Sarah Carter-Smith on September 17,
2018; Defendant Benjamin Davis on September 24, 2018; Defendant Dan Dillard on September
26, 2018; Defendant Darryl Grennell on September 26, 2018; and Defendant City of Natchez on
September 26, 2018. Defendants noticed the deposition of Plaintiff for September 24, 2018.
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Case deadlines can be modified only by order of the Court upon a showing of good cause
supported with affidavits, other evidentiary materials, or reference to portions of the record. See
Case Management Order [11]; Fed. R. Civ. P. 16(b)(4); Geiserman v. MacDonald, 893 F.2d 787,
790 (5th Cir. 1990).
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Defendants’ Motion to Compel [31] and Plaintiff’s Motion to Compel [33]
On August 29, 2018, Defendants filed their Motion to Compel [31], arguing that Plaintiff
failed to provide sufficient responses to multiple discovery requests. That same day, Plaintiff
filed his Motion to Compel [33], arguing that Defendants failed to provide sufficient responses to
two interrogatories. After reviewing the parties Motions [31] [33] and responses, the Court
directed the parties to complete an in-person, good-faith conference to address the pending
discovery disputes and file a joint report outlining what discovery disputes remain following the
conference. See Order [36].4
During their conference, the parties resolved many of their disputes. As a result,
Plaintiff’s Motion to Compel [33] will be denied as moot. The parties, however, were unable to
resolve all of their disputes. The remaining disputes involve two requests for production of
documents propounded by Defendants.
Federal Rule of Civil Procedure 26(b)(1) provides that:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweights it likely benefits.
Fed. R. Civ. P. 26(b)(1). This Rule also specifies that “[i]nformation within this scope of
discovery need not be admissible in evidence to be discoverable.” Id. The discovery rules are
accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants
in civil trials. Herbert v. Lando, 441 U.S. 153, 177 (1979). At some point, however, discovery
yields diminishing returns, needlessly increases expenses, and delays the resolution of the
parties’ dispute. Finding a just and appropriate balance in the discovery process is one of the key

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The Court determined that the parties had not conferred in good faith.
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responsibilities of the Court, and “[i]t is well established that the scope of discovery is within the
sound discretion of the trial court.” Freeman v. United States, 566 F.3d 326, 341 (5th Cir. 2009).
Request for Production No. 8
Request for Production No. 8: Please produce the executed Request for Copy of
Tax Return attached to the Request for Production of Documents.
Response: Plaintiff objects to Request No. 8 on the grounds it seeks information
not relevant to the issues in this case, beyond the scope of discovery and not likely
to lead to the discovery of admissible evidence.
In his Complaint [1], Plaintiff, a black male, alleges that Defendants fired him as the city
attorney for Natchez, Mississippi, and hired Robert Latham, a white male, to replace him.
Plaintiff asserts racial discrimination, conspiracy, breach of contract, slander, and libel claims
against Defendants. Plaintiff asserts that he is entitled to compensatory damages and
“[r]einstatement or front pay in lieu of reinstatement, back pay, lost benefits, and other pecuniary
losses . . . .” See Complaint [1] at 7. Additionally, in his discovery responses Plaintiff states that
he is “entitled to $240,000 which is 4 times the base salary of $60,000 paid by the City to Robert
Latham plus the amounts which he has billed up to this point..” See Interrogatory Response [312] at 6-7.
Regarding Defendant’s request seeking access to his tax returns, Plaintiff argues that the
amount of money he earned or did not earn is of no consequence. According to Plaintiff, “[n]o
matter how much money Plaintiff earned he would have earned an additional $60,000 plus
additional hours billed but for the breach of his contract by Defendants.” See Response [34] at 5.
However, Plaintiff has placed his financial picture in controversy and made it relevant to
the claims and defenses in this action. For example, it is well established that in a breach of
contract case, the injured party has a duty to “take reasonable steps to mitigate his damages, and
his failure to do so prevents him from recovering for damages which could have been avoided
through reasonable efforts.” See Buras v. Shell Oil Co., 666 F. Supp. 919, 924 (S.D. Miss. 1987)
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(citing Pelican Trucking Co. v. Rossetti, 167 So. 2d 924, 927 (Miss. 1964); Levy v. J.A. Olson
Co., 115 So. 2d 296, 298 (Miss. 1959); 25 C.J.S. Damages § 33 (1966)); see also 22 Am.Jur.2d,
Damages § 34 at 57 (“gains which were or could have been received by the nondefaulting party
by entering into another contract or transaction should be used in reducing damages caused by a
breach of contract promise only where the breach gave rise to an opportunity to enter into those
other contracts or transactions”).
Defendants are entitled to seek information regarding the opportunities available to
Plaintiff following his termination and Plaintiff’s efforts to mitigate damages. Considering the
relevance of Plaintiff’s tax returns and Defendants’ need for this information, the Court will
compel Plaintiff to execute requests for copies of tax returns. However, the Court finds that the
request and authorization should be limited to Plaintiff’s tax returns for the years of 2015
through 2017.
Request for Production No. 10
Request for Production No. 10: Please execute the Authorizations attached to this
Request for Production of Documents in regard to Plaintiff and return same to
Defendant’s counsel after the Authorizations have been properly notarized. These
Authorizations should be signed by a legally authorized individual and
accompanied by any and all documents evidencing such legal authority.
Response: Plaintiff objects to signing a “Personnel Records Authorization” or an
“Authorization for Release of Criminal and/or Criminal Release Records” on
grounds that these authorizations are vague, confusing, overly broad in time and
scope, seek information that is irrelevant to the issues in the case, beyond the
scope of discovery and not likely to lead to the discovery on admissible evidence.
One of the authorizations at issue in this request allows any person or entity to release to
Defendants Plaintiff’s personnel records, including “all applications for employment, test results,
dates of service, pay raises, salary, benefits, medical records, days absent/tardy, and reasons
therefor, date of termination, reasons therefor, and correspondence and any and all other records,
whether written, printed or typed, at any time made.” See [31-1] at 14.
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Plaintiff argues that the request for employment information is irrelevant and overly
broad in scope and time. Regarding the relevance of this request, the Court notes that Plaintiff
alleges that he is more qualified than the attorney hired to replace him. See Complaint [1] at 5-6.
Some of the information requested may shed light on Plaintiff’s qualification and is therefore
relevant to Plaintiff’s discrimination claim. However, this request is overly broad and out of
proportion to the needs of this case and should be limited. Plaintiff shall execute an
authorization seeking employment information such as applications for employment, test results,
dates of service, pay raises, salary, days absent/tardy, reasons therefore, dates of termination, and
reasons therefor from employers who employed Plaintiff from 2010 to the present. Defendants
may not request from Plaintiff’s employers benefit information, medical records, or “any and all
other records.”
The other authorization at issue in this request allows any law enforcement agency to
release to Defendants any information regarding Plaintiff’s “arrests, probation, parole and/or
criminal records” from any time period. See [31-1] at 13. Plaintiff argues that the request for
criminal record information is irrelevant and overly broad in scope and time. Evidence of a
criminal conviction may be used, subject to certain limitations, to attack a witness’s character for
truthfulness. See Fed. R. Evid. 609. Additionally, evidence of a crime, wrong, or other act, may
be admissible for certain limited purposes. See Fed. R. Evid. 404(b).
Although this request could lead to relevant information, it is overly broad and out of
proportion to the needs of this case. Plaintiff need not execute the criminal record authorization.
Instead, on or before September 21, 2018, Plaintiff shall identify any instance in which he was
arrested, charged, and/or indicted for a criminal act, other than traffic offenses, from 2008 to the
present. For each such arrest, charge, and/or indictment, Plaintiff shall provide (1) the date; (2)
the state and county in which the arrest charge, and/or indictment occurred; (3) the nature of the
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offense upon which the arrest, charge, and/or indictment was based; and (4) the disposition of the
arrest, charge, and/or indictment.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion to Extend Deadlines [28] is DENIED as moot.
2. Plaintiff’s Motion to Extend Deadlines [29] is GRANTED.
3. The discovery deadline is extended to September 26, 2018.
4. The deadline for motions (other than motions in limine or discovery motions) is
extended to October 10, 2018.
5. The parties shall conduct the depositions as noticed by the parties, including
the depositions of Plaintiff and Defendant Davis scheduled for September 24,
2018.
6. All other provisions and deadlines contained in the Case Management Order [11],
including the obligation to complete private mediation or a settlement conference
with the Court by the discovery deadline, remain in place.
7. Plaintiff’s Motion to Compel [33] is DENIED as moot.
8. Defendants’ Motion to Compel [31] is GRANTED in part and DENIED in part as set
forth herein.
SO ORDERED this the 13th day of September, 2018.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE

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