SaLazar v. Norfolk Regional Center et al

Filing 44

MEMORANDUM AND ORDER - Plaintiff's Motions to Appoint Counsel (filing nos. 25 and 36 ) are denied. Defendants' Motion to Amend Answer (filing no. 42 ) is granted. Plaintiff's Motion to Extend (filing no. 43 ) is granted. All dep ositions, whether or not they are intended to be used at trial, shall be completed by October 4, 2012. The Final Pretrial Conference will be held before the Magistrate Judge on February 7, 2013 at 9:00 a.m. The Clerk of the court is directed to se t a pro se case management deadline in this case using the following text: Pretrial conference before Magistrate. Judge Cheryl Zwart to be held on February 7, 2013. ( Pretrial Conference set for 2/7/2013 at 09:00 AM in Chambers before Magistrate Judge Cheryl R. Zwart.) Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMBROSIO SALAZAR JR.,
Plaintiff,
v.
NORFOLK REGIONAL CENTER,
et al.,
Defendants.

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4:11CV3207

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motions to Appoint Counsel (filing
nos. 25 and 36), Defendants’ Motion to Amend Answer (filing no. 42) and Plaintiff’s
Motion to Extend (filing no. 43). The court will explore these motions in turn.
I.

MOTIONS TO APPOINT COUNSEL
Plaintiff seeks the appointment of counsel. (Filing Nos. 25 and 36.) However,

in Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of
Appeals explained that “[i]ndigent civil litigants do not have a constitutional or
statutory right to appointed counsel. . . . The trial court has broad discretion to decide
whether both the plaintiff and the court will benefit from the appointment of
counsel . . . .” Id. (quotation and citation omitted). No such benefit is apparent here.
Plaintiff’s requests for the appointment of counsel are therefore denied without
prejudice.
II.

MOTION TO AMEND ANSWER
Defendants filed their Answer in this matter on June 21, 2012. (Filing No. 29.)

On August 21, 2012, Defendants moved to amend their Answer. (Filing No. 42.) In
cases such as this, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). In general, courts

should allow pleadings to be amended if it is necessary to further justice and will not
prejudice the parties. See Shen v. Leo A. Daly Co., 222 F.3d 472, 478-79 (8th Cir.
2000).
[A] district court can refuse to grant leave to amend a pleading only
where it will result in undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of the amendment.
Dennis v. Dillard Dep’t Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000) (internal
citations omitted).
Here, Defendants argue that the amendment will not prejudice Plaintiff and
would serve to correct factual errors contained in the original Answer. (Filing No. 42
at CM/ECF p. 2.) The court has reviewed Defendants’ Motion and finds that there is
no evidence of bad faith or dilatory motive and that no undue prejudice will result
from the amendment. Accordingly, Defendants’ Motion to Amend Answer is granted.
III.

MOTION TO EXTEND
Plaintiff has filed a Motion to Extend Time because he “is having a hard time

going through production of documents.” (Filing No. 43.) Liberally construed,
Plaintiff is requesting an extension of the court’s June 28, 2012, progression
deadlines. (See Filing No. 31.) Plaintiff’s Motion to Extend is granted and the court
will extend the progression deadlines as provided herein.
IT IS THEREFORE ORDERED that:
1.

Plaintiff’s Motions to Appoint Counsel (filing nos. 25 and 36) are denied.

2.

Defendants’ Motion to Amend Answer (filing no. 42) is granted.
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3.

Plaintiff’s Motion to Extend (filing no. 43) is granted.

4.

Deposition and discovery deadline. All depositions, whether or not they

are intended to be used at trial, shall be completed by October 4, 2012.
5.

Motions to compel discovery shall be filed on or before October 4, 2012.

The parties must comply with the provisions of NECivR 7.0.1 before filing a motion
to compel.
6.

Dispositive Motions. All dispositive motions shall be filed on or before

November 5, 2012. The parties must comply with the provisions of NECivR 7.0.1
and NECivR 56.1 when filing summary judgment motions.
7.

Pretrial Conference.
a.

Defense counsel will have the primary responsibility for drafting
the Order on Final Pretrial Conference, pursuant to the format and
requirements set out in NECivR 16.2(a)(2). The plaintiff will be
responsible for cooperating in the preparation and signing of the
final version of the Order. The Order should be submitted to the
plaintiff and to any other parties by January 4, 2013.

The

plaintiff shall provide additions and/or proposed deletions to
Defense counsel by January 18, 2013. Defense counsel shall
submit the Proposed Order on Final Pretrial Conference to the
court by no later than February 1, 2013. If a party proposes an
addition or deletion which is not agreed to by all the other parties,
that fact should be noted in the text of the document. The
Proposed Order on Final Pretrial Conference must be signed by all
pro se parties and by counsel for all represented parties.

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b.

The Final Pretrial Conference will be held before the Magistrate
Judge on February 7, 2013 at 9:00 a.m. Prior to the pretrial
conference, all items as directed in NECivR 16.2 and full
preparation shall have been completed so that trial may begin at
any time following the Pretrial Conference.

c.

If a plaintiff is held in an institution, the pretrial conference will
be by telephone. In that case, Defense counsel shall contact the
plaintiff’s institution in advance and arrange to initiate and place
the conference call.

8.

The trial date will be set by the Magistrate Judge at the time of the Final

Pretrial Conference.
9.

The Clerk of the court is directed to set a pro se case management

deadline in this case using the following text: Pretrial conference before Magistrate
Judge Cheryl Zwart to be held on February 7, 2013.
DATED this 28 th day of August, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
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