Bry v. City of Frontenac, Missouri et al

Filing 194

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that Plaintiffs Combined Motion and Memorandum for Deposition to Perpetuate Testimony During Pendency of Appeal (ECF No. 185 ) is DENIED. IT IS FURTHER ORDERED that the Clerk shall send this Memorandum and Order to Robert M. Bry, 10364 Conway Road, St. Louis, MO 63131. Signed by District Judge Ronnie L. White on 5/11/2016. (A copy of this order was sent via U.S. Mail to Robert Bry.)(NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ROBERT M. BRY,
Plaintiff,
v.
CITY OF FRONTENAC, et al.,
Defendants.

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No. 4:14-CV-1501 RLW

MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs Combined Motion and Memorandum for
Deposition to Perpetuate Testimony During Pendency of Appeal (ECF No. 185). This matter is
fully briefed and ready for disposition. 1

DISCUSSION
In his Motion, Plaintiff Robert Bry ("Bry") requests leave of the Court to serve a subpoena
on the West Central Dispatch Center ("WCDC") and depose its corporate designee. (ECF No.
185). Bry claims that on November 28, 2015 the Frontenac Defendants turned over the complete
Standard Operating Procedures Manual ("SOP Manual") of the Frontenac Police Department.
(ECF No. 185, if4).

Bry asserts that the SOP Manual outlines that the WCDC preserved

recordings, including the radio transmissions and conversations regarding the September 13,
2013 incident between Bry and his then-wife, Robin. The WCDC only maintains the recordings

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Bry's Reply is titled "Plaintiff Robert M. Bry's Reply in Support of His Rule 27(B) Motion;
Rule 60 Combined Motion and Memorandum to Re-Open This Action Based upon Fraud by
Defendants; and Request for a Hearing" (ECF No. 191). Bry, however, cannot raise a new issue
or basis for relief in his Reply. See Castillo-Alvarez v. Smith, No. CV 14-542 (JRT/JSM), 2015
WL 6445479, at *22 (D. Minn. Oct. 23, 2015) ("it is not appropriate to raise new grounds for
relief in a reply").

for three (3) years. Bry claims that the WCDC's recordings are "essential to obtaining relevant,
material, and critical evidence that Mr. Bry has been unable to obtain from the Frontenac
Defendants despite repeated efforts." (ECF No. 185, ~7) . Bry notes that Officer Ford testified at
his deposition that the WCDC "[m]ay record all that stuff ... [b]ut it's only kept for a limited
amount of time. " (ECF No. 191at2).
In response, Defendants assert that "such recordings never existed." (ECF No. 186 at 3).
Defendants note that they previously produced the 911 recording from September 13, 2013,
which was obtained from WCDC. (ECF No. 186 at 5). Second, Defendants maintain that Bry
had adequate time to take the deposition of WCDC while during the discovery period before this
Court. (ECF No. 186 at 3-4). Defendants note that Plaintiff requested that the discovery period
be extended twice, but never requested WCDC ' s deposition. Defendants further assert that they
timely produced the SOP Manual on November 28, 2015 after it was requested on November 24,
2015. (ECF No. 186 at 4). Finally, Defendants note that Bry only contends that the WCDC
"should" have additional recordings, without any support. (ECF No. 186 at 5-6). Defendants
maintain that this Court should not allow such post-judgment discovery to proceed purely on
conjecture, particularly when this discovery likely will lead to further discovery and delays.
(ECF No. 186 at 6).
The Court denies Bry's Motion to conduct Rule 27(b) discovery. Rule 27(b)(l) provides:
"The court where a judgment has been rendered may, if an appeal has been taken or may still be
taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of
further proceedings in that court." Bry has not demonstrated that the deposition of WCDC
would provide any testimony that could be used in a further proceeding before this Court or for
Bry's appeal. Defendants have not demonstrated that any tapes, documents, or other evidence

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related to the September 13, 2013 incident are in WCDC's possession. Further, the Court finds
that Bry's request to depose WCDC is untimely because Bry was aware of information related to
WCDC no later than,November 28, 2015 . Bry, however, never sought leave to obtain testimony
from WCDC before this Court's ruling on December 18, 2015. Therefore, the Court will not
allow Bry to conduct this untimely, post-judgment discovery based solely upon his own
speculation.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Combined Motion and Memorandum for

Deposition to Perpetuate Testimony During Pendency of Appeal (ECF No. 185) is DENIED.
IT IS FURTHER ORDERED that the Clerk shall send this Memorandum and Order to

Robert M. Bry, 10364 Conway Road, St. Louis, MO 63131.
Dated this 11th day of May, 2016.

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UNITED STATES DISTRICT JUDGE

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