Johnson v. Edwards et al

Filing 56

MEMORANDUM AND ORDER granting 53 Motion to Continue and Compel. The final progression order is amended. Non-Jury Trial rescheduled for 10/6/2014 at 09:00 AM in Courtroom 5, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Lyle E. Strom. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (KMG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
TERRY JOHNSON,

)
)
Plaintiff,
)
)
v.
)
)
MR. VINCE EDWARDS, Branch
)
Contract Manager, MR. PHILLIP )
O’DONNELL, Operation Contract )
Manager, MR. JOSH GOOSSEN,
)
Contract Manager, MISS DENISE )
ROLLERSON, Dispatcher, MISS
)
McGEE, Principal and
)
employee of O.P.S., MR.
)
RAYMOND BURT, Lead Dispatcher,)
FIRST STUDENT,
)
)
Defendants.
)
______________________________)

8:12CV244

MEMORANDUM AND ORDER

This matter is before the Court on the motion (Filing
No. 53) of the defendants to compel 26(a) disclosures and for
continuance.

The defendants have also filed a brief (Filing No.

54) with an accompanying index of evidence therein.

The Court

will grant the defendants’ motion.
I.

BACKGROUND
This is a pro se, in forma pauperis discrimination

case, where the plaintiff, Terry Johnson (“Johnson”), claims that
his former employer and several of his supervisors discriminated
against him and that discrimination led to his firing (Filing No.
1).

In September 2013, the Court scheduled trial in this case

for September 2, 2014 (Filing No. 42).

After various discovery

issues delayed the case’s progress, the Court ordered Johnson to
answer discovery requests or face dismissal for failure to
prosecute (Filing No. 51).
The defendants want to compel Johnson’s Rule 26(a)
disclosures.

Under the Court’s final progression order, the

parties should have exchanged Rule 26(a) mandatory initial
disclosures on October 4, 2013 (Filing No. 41, at 1).

Neither

party has delivered its Rule 26(a) disclosures (see generally the
Docket, 8:12CV244 (lacking any notice of 26(a) initial disclosure
service)).

Because Johnson has not provided his Rule 26(a)

disclosure, the defendants were unable to prepare for their
deposition of Johnson and they postponed the deposition until
Johnson produced such documents.

This, and the delayed discovery

production, justifies the continuation of trial.

The trial will

be rescheduled.
II.

RULE 26(a)
Federal Rule of Civil Procedure 26 is a crucial rule

that governs discovery and the duty of the parties to disclose
information to one another.

Subsection 26(a) requires the

parties to disclose the following information to one another.

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(A) In General. . . . [A] party
must . . . provide to the other
parties:
(i) the name and, if known, the
address and telephone number of
each individual likely to have
discoverable information -- along
with the subjects of that
information -- that the disclosing
party may use to support its claims
or defenses, unless the use would
be solely for impeachment;
(ii) a copy -- or a description by
category and location -- of all
documents, electronically stored
information, and tangible things
that the disclosing party has in
its possession, custody, or control
and may use to support its claims
or defenses, unless the use would
be solely for impeachment;
(iii) a computation of each
category of damages claimed by the
disclosing party -- who must also
make available for inspection and
copying as under Rule 34 the
documents or other evidentiary
material, unless privileged or
protected from disclosure, on which
each computation is based,
including materials bearing on the
nature and extent of injuries
suffered; and
(iv) for inspection and copying as
under Rule 34, any insurance
agreement under which an insurance
business may be liable to satisfy
all or part of a possible judgment
in the action or to indemnify or
reimburse for payments made to
satisfy the judgment.
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Fed. R. Civ. P. 26(a)(1)(A).

The parties shall deliver these

materials to one another.
Also illustrative of the Rule 26(a) disclosure is
subsection 26(a)(1)(E) which states the following:
(E) Basis for Initial Disclosure;
Unacceptable Excuses. A party must
make its initial disclosures based
on the information then reasonably
available to it. A party is not
excused from making its disclosures
because it has not fully
investigated the case or because it
challenges the sufficiency of
another party's disclosures or
because another party has not made
its disclosures.
Fed. R. Civ. P. 26(a)(1)(E).

Rule 26(a) does not require a

format for these disclosures, but it does state that parties must
deliver information that is reasonably available to them.

Id.

The Court reminds the parties that they also have a
continuing duty to disclose -- or supplement -- newly discovered
information when a party learns that “in some material respect
the [initial] disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery process
or in writing.”

Fed. R. Civ. P. 26(e).

Failure to deliver the

initial disclosures by the following date may result in
dismissal.

Accordingly,

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IT IS ORDERED:
1)

The Final Progression Order shall be amended as

follows:
A.
Mandatory Disclosures no later than July 14,
2014.
B.
Complete Deposition no later than July 28,
2014.
C.

Trial is rescheduled for:
October 6, 2014, at 9 a.m.,

Courtroom No. 5, Roman L. Hruska United States
Courthouse, 111 South 18th Plaza, Omaha, Nebraska.
2)

The Mandatory Disclosures shall contain the

following information:
A. The name of each individual likely to have
discoverable information;
B. If known, the address and telephone number of
each individual likely to have discoverable
information;
C. The subjects of that discoverable information
that the disclosing party may use to support its
claims or defenses, unless the use would be solely
for impeachment;
D. Copies (or a description by category and
location) of all documents, electronically stored
information, and tangible things that the
disclosing party has in its possession, custody,
or control and may use to support its claims or
defenses, unless the use would be solely for
impeachment; and, if applicable,
E. Any insurance agreement under which an
insurance business may be liable to satisfy all or
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part of a possible judgment in the action or to
indemnify or reimburse for payments made to
satisfy the judgment.
3)

Johnson must deliver computations of each category

of damages claimed by him and make available for inspection and
copying as under Rule 34 those documents or other evidentiary
material, unless privileged or protected from disclosure, on
which each computation is based, including materials bearing on
the nature and extent of injuries suffered.
DATED this 3rd day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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