Hunter v. Salem, Missouri, City of et al

Filing 63

MEMORANDUM in Support of Motion re 58 MOTION for Extension of: Defendants to Disclose Experts and Reports, and to file a Dispositive Motion filed by Defendants Board of Trustees, Salem Public Library, Glenda Woffard. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 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

JURY TRIAL DEMANDED

SUGGESTIONS IN SUPPORT OF DEFENDANTS’ MOTION FOR EXTENSION OF
TIME FOR DEFENDANTS TO DISCLOSE EXPERTS AND REPORTS, AND TO FILE
A DISPOSITIVE MOTION
COME NOW Defendants Glenda Wofford and the Board of Trustees of the Salem Public
Library, by and through their attorneys of record, Baird, Lighter, Millsap & Harpool, P.C., and in
support of their motion to extend the time in which to disclose experts and file a dispositive
motion, state as follows:
I.

Extension for Depositions, Discovery, and Expert Disclosure.

Defendants believed that both parties were operating in good faith to schedule additional
depositions and complete discovery in effort to proceed toward mediation. While Plaintiff claims
that Defendants made no diligent effort to obtain discovery responses or deposition dates
(Memorandum, p. 2.), Defendants continually contacted Plaintiff’s counsel to obtain available
dates for Plaintiff’s deposition which previously was cancelled at Plaintiff’s request due to her
alleged health challenges and resulting physical inability to attend her deposition. Defendants
repeatedly inquired as to the status of Plaintiff’s discovery responses, and received assurances

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that Plaintiff’s counsel would work with Defendants counsel to set a deposition date.
Defendants, out of professional and personal courtesy to Plaintiff and her counsel, waited for
Plaintiff’s counsel to advise when his client’s health concerns were resolved before compelling
her to deposition. Now Plaintiff’s counsel attempts to use the courtesy as a sword against
Defendant.
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. 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. 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.
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.
Defense Counsel also repeatedly requested the deposition and discovery response of
Plaintiff as discussions regarding mediation took place. 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. In that same

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email, Defense Counsel stated “We also have repeatedly requested dates for your clients
deposition which we 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. Each instance demonstrates the understanding that the expert disclosure
cannot take place until after Plaintiff’s deposition has been taken and her discovery responses
received.
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. 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
discovery as soon as possible so I can advise my client on settlement and be prepared for
mediation.”

Exhibit E. 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. 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. 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, or inform Defendants of their position that
discovery responses from Defendant had not been received. At no time did Plaintiff’s counsel
advise that he was no longer “more than agreeable” to extending the time to disclose and file
expert reports to seven days beyond his client’s deposition. Exhibit G.

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Defendants believed that the parties were proceeding toward a good-faith mediation of
the claim, had agreed to April 30, 2013, as the date, and selected Richard Sher as the mediator.
Exhibits D and E. Throughout discussions regarding mediation, Defendants’ counsel believed
that Plaintiff’s counsel was operating in good faith to resolve disputes and proceed toward
mediation, and that the parties could resolve any disputes amicably, as had been done in previous
instances. See Exhibits H-L. The attached Exhibits do not constitute an exhaustive list, but only
some examples of Defendants’ attempts to reschedule Plaintiff’s deposition, and provide
examples of the parties working out disputes and the basis for Defense Counsel’s belief that the
parties were working in good faith.
Plaintiff repeatedly asserts that Defendants did not reschedule Plaintiff’s deposition after
Plaintiff backed out of her agreed-to deposition date on the eve of the deposition. Plaintiff’s
Memo in Opposition, p. 3.

However, Defendants made repeated requests for available

deposition dates, and based on ongoing discussions, believed that Plaintiff’s counsel was
operating in good faith to ensure that the deposition was taken and that all discovery responses
were sent and received. See Exhibits A-F. Plaintiff fails to inform the court that no response was
ever received from Plaintiff on repeated attempts to obtain deposition dates. Defendants were
and are waiting for Plaintiff to profess herself physically capable of attending her deposition,
which never occurred.
Regarding Defendants’ discovery responses to Plaintiff, Defendants’ counsel believed
that the discovery responses had been sent to Plaintiff’s counsel in December of 2012 and
Plaintiff’s position on the issue was only brought to counsel’s attention for the first time in an
email from Plaintiff’s counsel on February 25, 2013, the same day Plaintiff suddenly denounced
any intention to mediate and filed for summary judgment.

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II.

Extension for Filing of a Dispositive Motion.

Pursuant to Rule 56(d), Defendants may request this court to defer consideration of
Plaintiff’s Motion for Summary Judgment to allow Defendants to conduct additional discovery
needed to respond to the motion. F. R. Civ. P. 56(d). 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.
Fed. R. Civ. P. 56(d).

56(c) requires that stated facts must be supported by admissions,

interrogatory answers, or other materials. F. R. Civ. P. 56(c)1(a). Defendants have filed an
appropriate motion, pursuant to the rule, for additional time to complete discovery so as to fully
and properly respond to Plaintiff’s Motion for Summary Judgment. An extension of the deadline
for Defendant to file its Motion for Summary Judgment will result in no additional delay beyond
what granting that motion would require.

It is appropriate the Court have appropriately

supported cross motions for summary judgment before it.
Here, Defendants were entitled to take Plaintiff’s deposition and receive her discovery
responses. Defendants agreed to Plaintiff’s request to postpone her deposition due to her health,
not to proceed without it. While waiting for notice, Plaintiff’s health had improve, Defendant
operated under a good-faith belief that the parties were working towards those ends in effort to
mediate the case on April 30, 2012. Those were the agreements reached by the parties when the
deposition was postponed. The court ordered Plaintiff to attend a deposition, but Defendants
were never provided dates by which Plaintiff would be physically able to attend her deposition.
The facts obtained in interrogatory answers and deposition testimony are necessary for
Defendants to file a Motion for Summary Judgment in addition to supporting their own factual

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allegations in response to Plaintiff’s Summary Judgment, as required by Rule 56(c). For Plaintiff
to argue that her failure to inform Defendants of the improved status of her health (in spite of
repeated requests) justifies her avoiding deposition is not only disingenuous and breaches
previous agreements of counsel, but only obstructs the mission of this Court to make a fully
advised decision in this matter.
III.

Justice Will be Served by the Extension.

This case presents important constitutional issues (that are likely the subject of an appeal
for either party) that cannot be decided on a record that lacks adequate facts on which to base the
decision. The United States Supreme Court has stated, “important constitutional issues are best
decided on the basis of factual records which tender the underlying constitutional issues in cleancut and concrete form.” Piccirillo v. New York, 400 U.S. 548, 558, 91 S. Ct. 520, 526, 27 L. Ed.
2d 596 (1971). “A basic principle of constitutional adjudication is, however, that the courts will
not formulate a rule of constitutional law broader than is required by the precise facts to which it
is to be applied, and that constitutional issues should not be decided in absence of the necessity
to do so, and then only on an adequate factual record.” Brenden v. Indep. Sch. Dist. 742, 342 F.
Supp. 1224, 1230 (D. Minn. 1972) aff'd, 477 F.2d 1292 (8th Cir. 1973).
Here, the facts currently in the record are insufficient for the Court to formulate an
important rule of constitutional law required by precise facts.

As described in numerous

communications between counsel, the deposition and discovery responses are necessary to
evaluate the legal claims of Plaintiff, and for Defendants to fully defend the case. Defendants
also note that this case will be bench tried, meaning that the Court should have all relevant facts
before it before rendering a decision. As such, Defendants respectfully request an order pursuant

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to Rule 56(d) to allow them to depose Plaintiff, depose Plaintiff’s expert, and receive discovery
responses and file Defendants’ expert report before filing a Motion for Summary Judgment.
IV.

Conclusion.

For the reasons stated herein and those stated in Defendants’ Motion for Extension
Defendants pray this court to modify the scheduling order and grant an extension of time to
disclose their experts and reports until ten days after Plaintiff’s deposition is taken, discovery
responses are received, and Plaintiff’s expert is deposed and for an extension to file a dispositive
motion until such discovery is complete.
Respectfully submitted,
BAIRD, LIGHTNER, MILLSAP & HARPOOL, P.C.
By:
/s/M. Douglas Harpool
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]

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/s/ M. Douglas Harpool
M. Douglas Harpool

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