Hunter v. Salem, Missouri, City of et al

Filing 62

MOTION for Extension of Time to File Response/Reply Defendants' Motion for Extension of Time to Respond to Plaintiff's Motion for Summary Judgment by Defendants Board of Trustees, Salem Public Library, Glenda Woffard. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Cologna, Matt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANAKA HUNTER,

)
)
Plaintiff,
)
)
vs.
)
)
CITY OF SALEM, MISSOURI,
)
BOARD OF TRUSTEES, Salem Public )
Library, and GLENDA WOFFORD,
)
Individually, and in her official capacity )
As Director of the Salem Public Library, )
)
Defendants.
)

Case No: 4:12-CV-0004-ERW

DEFENDANTS MOTION FOR EXTENSION OF TIME TO RESPOND TO
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
COME NOW Defendants Board of Trustees, Salem Public Library, and Glenda Wofford,
Individually, by and through counsel, Baird, Lightner, Millsap & Harpool, P.C., and pursuant to
Federal Rule of Civil Procedure 56(d) moves this Court to allow Defendants to take Plaintiff’s
Deposition and obtain her discovery responses before responding to Plaintiff’s Motion for
Summary Judgment, and in support of said motion, state as follows:
1.

Defendants propounded on Plaintiff requests for production and interrogatories on
October 4, 2012.

2.

Despite repeated requests, Defendants have received neither any date on which
Plaintiff will be able to attend her deposition nor discovery responses.

3.

On February 25, 2013, Plaintiff filed a motion for summary judgment.

4.

Under Rule 56(d), If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the
court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery;
or
(3) issue any other appropriate order.
F. R. Civ. P. 56(d).

5.

“Rule 56(d) should be applied with a spirit of liberality.” Kuehne v. Citimortgage,
Inc., 4:10 CV 1902 DDN, 2012 WL 1205754 (E.D. Mo. Apr. 11, 2012).

6.

On October 31, 2012, Defense Counsel was informed that there was “no chance”
Plaintiff would attend her November 1, 2012, deposition, as previously agreed to
by the parties, and that Plaintiff’s Counsel “will work with you to set up an
alternative depo date for Ms. Hunter….” Exhibit A.

7.

That same date, Defense Counsel requested in a letter to Plaintiff’s Counsel, that
he “[p]lease provide the first available dates for your client’s deposition.” Exhibit
B. Defense Counsel agreed to take the deposition at a later date on the condition
that Defendants would receive sufficient time after the deposition to disclose
experts and reports, and that other deadlines would be adjusted accordingly.
Exhibit B.

8.

On November 1, 2012, Plaintiff’s counsel stated that he was “more than
agreeable” to extending time to disclose and file expert reports seven days beyond
“the date we are able to coordinate our client’s deposition.” Exhibit G.

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9.

Defense Counsel never received available dates for Plaintiff’s deposition despite
repeated requests and Plaintiff’s counsel’s agreement to coordinate the date.
Defense counsel was never told Plaintiff’s health stabilized to permit a deposition
to be scheduled.

10.

During discussions regarding mediation of the case, Defense Counsel also
repeatedly requested the deposition and discovery response of Plaintiff. On
December 19, 2012, Defense Counsel stated that “[i]t is possible that learning
more about your client’s claims could cause us to reevaluate our position. Perhaps
the previous statements from her don’t fully detail all of her complaints. We will
only know when she complies with discovery.” Exhibit C.

11.

In that same email, Defense Counsel stated “We also have repeatedly requested
dates for your clients deposition which were advised needed to be rescheduled to
accommodate her medical care. We will need to take your experts deposition as
soon as your clients deposition can be concluded.” Exhibit C.

12.

In a separate email dated December 21, 2012, Defendants’ Co-counsel again
inquired, “any word on deposition dates for your client and discovery responses?”
Exhibit D.

13.

On February 8, 2013, Defense Counsel again stated to Plaintiff’s counsel, “When
will I get your clients answers to interrogatories and be able to take her
deposition? Why have you not responded to our requests for that discovery from
your client? Both would be important in my evaluation of the legal argument you
pose in your email. I can mediate April 30 but need your clients discover as soon

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as possible so I can advise my client on settlement and be prepared for
mediation.” Exhibit E.
14.

Counsel went on to state, “[p]erhaps your clients deposition and discovery
answers will provide support for your claims. I won’t know till I have them.”
Exhibit E.

15.

Finally, on Monday, February 25, Defense Counsel reminded Plaintiff’s counsel
via email that “We have repeatedly asked for your client’s deposition.” Exhibit
F.

16.

At no time during any of that correspondence did Plaintiff’s Counsel respond that
they did not intend to respond to discovery or produce their client for deposition.

17.

Defendant’s counsel believed that both parties were proceeding in good faith
toward mediation, and that any dispute regarding depositions or discovery could
be worked out in the same amicable manner as previous issues between the
parties.

18.

The communications between the parties, attached as Exhibits A-G, demonstrate
that both parties were aware of genuine issues of material fact, which were the
basis of Defendants’ repeated requests for Plaintiff’s deposition and discovery
responses in advance of mediation.

WHEREFORE, Defendants pray the Court grant their Motion for Extension of Time to
Respond to Plaintiff’s Motion for Summary Judgment, and/or for such other relief as the Court
deems proper.
Respectfully submitted,
BAIRD, LIGHTNER, MILLSAP & HARPOOL, P.C.

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By:
/s/Matt Cologna
M. DOUGLAS HARPOOL #28702, 28702MO
MATT COLOGNA #62020, 62020MO
1901-C South Ventura Avenue
Springfield, MO 65804-2700
Telephone [phone]
Facsimile [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

CERTIFICATE OF SERVICE
I hereby certify that on the 27th day of February, 2013, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which provided a copy of same to
the below listed counsel of record:
Anthony E. Rothert
Grant R. Doty
ACLU of Eastern Missouri
454 Whittier Street
St. Louis, MO 63108
Fax: [phone]

Daniel Mach
ACLU Foundation
915 15th Street, NWS
Washington, DC 20005
Fax: [phone]
/s/ Matt Cologna
Matt Cologna

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