Hunt v. Dept. Of Veterans' Affairs et al

Filing 69

MEMORANDUM AND ORDER - 1. Defendant's Motion to Substitute Party Defendant (filing no. 42 ) is granted. Plaintiff's Motion to Deny Motion to Substitute (filing no. 46 ) is denied. 2. The Clerk of the court shall update the docket sheet in accordance with the Notice of Substitution (filing no. 17 ). The United States of America is the only Defendant and replaces Defendant Dr. Whittier. 3. Plaintiff's Motion to Amend Court Order (filing no. 53 ) and Motion to Deny Defendant' ;s Motion to Depose Plaintiff (filing no. 62 ) are denied. In accordance with this Memorandum and Order, Plaintiff's deposition may proceed on June 4, 2010. 4. Defendant's Motion to Limit Discovery (filing no. 60 ) is granted. Defendant need not respond to Plaintiff's April 30, 2010, Request for Production/Inspection unless it is later directed to do so by the court. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party)(JAB)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA S T E V E N M. HUNT, Plaintiff, v. D R . WHITTIER, Lincoln VA Primary C a re Provider Assoc. Chief of Med., Defendant. ) ) ) ) ) ) ) ) ) ) ) 4 :0 9 C V 3 1 3 4

M EM ORANDUM AND ORDER

T h is matter is before the court on Defendant's Motion to Substitute Party Defendant (f ilin g no. 42) and Motion to Limit Discovery (filing no. 60). Also pending are Plaintiff's M o tio n to Deny Motion to Substitute (filing no. 46), Motion to Amend Court Order (filing n o . 53) and Motion to Deny Defendant's Motion to Depose Plaintiff (filing no. 62.) The c o u rt addresses each Motion below. M o tio n to Substitute Defendant filed a Motion to Substitute Party Defendant, arguing that substitution o f the United States of America for Defendant Whittier is proper in this action pursuant to 2 8 U.S.C. § 2679 (d)(1). (Filing No. 42.) Defendant refers to its Notice of Substitution in w h ic h the United States Attorney for the District of Nebraska, Deborah R. Gilg, certified that D e f en d a n t Whittier acted "within the scope of his employment" during the events which give ris e to Plaintiff's claims. (Filing Nos. 17 and 17-1, Attach. 1, at CM/ECF p. 1.) In his M o tio n to Deny Motion to Substitute, Plaintiff states that he raises constitutional claims and s u b s titu tio n is therefore not allowed. (Filing No. 46.) However, the court has already d e te rm in e d that the only claim remaining is Plaintiff's Federal Tort Claims Act ("FTCA") c la im against Defendant Whittier. (Filing No. 10.) In light of this, and in accordance with 2 8 U.S.C. § 2679 (d)(1), substitution is warranted and the court will direct the Clerk of the c o u rt to update its records accordingly.

P la i n tif f' s Motions Relating to Discovery P la in tif f filed two discovery-related Motions, a Motion to Amend Court Order (filing n o . 53) and a Motion to Deny Defendant's Motion to Depose Plaintiff (filing no. 62). In his M o tio n to Amend Court Order, Plaintiff argues that no progression order should have been e n te re d in this matter because the court's Local Rules "[e]xempt [pro se cases] from the d is c lo s u re and conference requirements of Federal Rule of Civil Procedure 26." (Filing No. 5 3 at CM/ECF p. 1.) While it is unclear what relief, if any, Plaintiff seeks in this Motion, the c o u rt's Local Rules specifically provide that, in pro se cases, "[a]pproximately 30 days after the last defendant files an answer, the court issues a progression order addressing discovery a n d other issues." NeCivR 16.1(c)(2). The court entered a Progression Order in this case o n February 17, 2010, approximately 15 days after the last Defendant filed an Answer. (F ilin g Nos. 18 and 20.) Thus, the Progression Order was properly entered and any relief s o u g h t by Plaintiff in his Motion to Amend Court Order is denied. In his Motion to Deny Defendant's Motion to Depose Plaintiff, Plaintiff objects to D e f e n d a n t's Notice to Take Deposition of Plaintiff. (Filing No. 62.) As set forth above, the c o u rt entered a Progression Order in this matter on February 17, 2010. (Filing No. 20.) The c o u rt later entered a Memorandum and Order extending the deadlines set forth in that P ro g re s s io n Order.1 (Filing No. 3 8 .) In that Memorandum and Order, the court ordered that d e p o s itio n s could proceed and must be completed by July 27, 2010. (Id.) On May 5, 2010, D e f en d a n t filed a Notice to take Deposition of Plaintiff, with the date for the deposition set f o r May 14, 2010. (Filing No. 59.) Plaintiff objects to this Notice on two primary grounds. F irs t, Plaintiff argues that he was not given enough notice of the deposition. (Filing No. 62) S e c o n d , Plaintiff argues that he should not be deposed until the court rules on all pending m o tio n s . (Id.) In its Response to the Motion, Defendant does not agree with Plaintiff, but s ta te s that it will file a new notice, setting Plaintiff's deposition for June 4, 2010. (Filing No. 6 5 .) In addition, all pending Motions are resolved in this Memorandum and Order. In light o f this, Plaintiff's Motion to Deny is denied and the deposition of Plaintiff may proceed on J u n e 4, 2010.
Plaintiff claims the Defendant's Unopposed Motion to Extend Initial Progression Order (filing no. 28) was filed in bad faith. The court has reviewed the record and finds no evidence of bad faith.
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D e f e n d a n t' s Motion to Limit Discovery A s set forth above, the only claim remaining in this matter is Plaintiff's FTCA claim a g a in s t the United States for treatment he received from Dr. Whittier between the years 2006 a n d 2008. (Filing Nos. 9 and 10.) On April 30, 2010, Plaintiff filed a Request for P r o d u c tio n /In s p e c tio n (his fourth), seeking "all forms of documents that will confirm or ruleo u t that [Defendant] has/has a "DUTY" to be part of, associated with, or who c re a te d /in itia te d the Departments/Agencies listed below." (Filing No. 57 at CM/ECF p. 1.) P l a in t i f f then lists 53 separate entities and claims that "[t]he above information was s u b m itte d in Feb. 2000 to our President." (Id.) In it's Motion to Limit Discovery, Defendant objects to Plaintiff's April 30, 2010, R e q u e s t for Production/Inspection and requests that the court prevent this discovery because it is vague, overly broad, and irrelevant. (Filing No. 61.) In Response, Plaintiff does not a rg u e the relevance or propriety of the request.2 (Filing No. 6 2 .) Based on the record c u rre n tly before it, the court agrees with Defendant that detailed information regarding the U n ited States's relationship with more than 50 separate entities is not relevant or "reasonably c a lc u la te d to lead to the discovery of admissible evidence" in this matter. Fed. R. Civ. P 26 (b )(1 ). Thus, the Motion to Limit Discovery is granted. However, in the event that Plaintiff la te r shows that such a request is relevant or otherwise meets the requirements of Federal R u le of Civil Procedure 26, he may seek relief from the court. IT IS THEREFORE ORDERED that: 1. D e f e n d a n t's Motion to Substitute Party Defendant (filing no. 42) is granted.

P la in tif f 's Motion to Deny Motion to Substitute (filing no. 46) is denied.

Plaintiff's entire objection to the Motion relates to Defendant's reference to an April 19, 2010, letter regarding various discovery issues, sent by Defendant to Plaintiff. (Filing No. 62.) Plaintiff states that "Defendant never wrote Plaintiff and will not be-able to produce prove that the Defendant had written Plaintiff" to discuss discovery issues. (Id. at CM/ECF p. 2.) However, Defendant has filed a copy of this letter, along with a return receipt signed by Plaintiff on April 21, 2010. (Filing No. 66-1, Attach. 1, at CM/ECF pp. 1-2.) Plaintiff is reminded of his obligations under Federal Rule of Civil Procedure 11 and the sanctions which may be imposed if that Rule is violated. See generally, Fed. R. Civ. P. 11.
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2.

T h e Clerk of the court shall update the docket sheet in accordance with the

N o tic e of Substitution (filing no. 17). The United States of America is the only Defendant an d replaces Defendant Dr. Whittier. 3. P la in tif f 's Motion to Amend Court Order (filing no. 53) and Motion to Deny

D e f e n d a n t's Motion to Depose Plaintiff (filing no. 62) are denied. In accordance with this M e m o ra n d u m and Order, Plaintiff's deposition may proceed on June 4, 2010. 4. D e f e n d a n t's Motion to Limit Discovery (filing no. 60) is granted. Defendant

n e e d not respond to Plaintiff's April 30, 2010, Request for Production/Inspection unless it is later directed to do so by the court. DATED this 11 th day of May, 2010. B Y THE COURT:

s / Joseph F. Bataillon Chief United States District Judge

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