Swift v. Cohart et al

Filing 86

ORDER denying 82 Motion to Intervene and 83 Motion for Discovery. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,

8:14CV243

vs.
ORDER
JOHN DOE COHART, OMAHA POLICE,
KYLER, SCHMADEDER, AND Cheif of
police; and CORHART, Omaha Police;
Defendants.
Plaintiff has filed a motion to intervene, (Filing No. 82), and to conduct discovery,
(Filing No. 83).

Since the plaintiff himself signed the motion to intervene, the court

interprets the motion as a request for leave to add a party. The plaintiff has not complied
with this court’s local rules: He did not file a proposed amended complaint in support of his
motion to amend/intervene or a brief in support of either motion. NECivR 7.1(a) and
15.1(a).
By court order, the deadline for moving to amend pleadings was October 28, 2015.
(Filing No. 59). Pursuant to Rule 16(b)(4), a case management order setting progression
deadlines “may be modified only for good cause and with the judge's consent.” Fed. R. Civ.
P. 16(b)(4). The movant's level of diligence and the degree of prejudice to the parties are
both factors to consider when assessing if good cause warrants extending a case management
deadline, with the movant’s diligence being the first consideration and the extent of prejudice
to either party considered only following a requisite threshold finding of due diligence.
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Marmo v. Tyson
Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).
The deadline for moving to amend or add parties expired before the plaintiff filed his
pending motion to amend, and plaintiff has not explained why he could not timely file the
motion. In addition, it is not clear who the plaintiff wants to add as a party.

As to plaintiff’s discovery request, the defendant has alleged a qualified immunity
defense and has moved for summary judgment based on that defense. (Filing No. 71). The
doctrine of qualified immunity is designed to protect state actors from monetary damages
and the costs associated with litigation, such as discovery. Harlow v. Fitzgerald, 457 U.S.
800, 817-818 (1982). Qualified immunity is “an immunity from suit rather than a mere
defense to liability.” Hunter v. Bryant, 502 U.S. 224 (1991); Mitchell v. Forsyth, 472 U.S.
511, 526 (1985). Thus, where qualified immunity is asserted as a defense, it is within the
discretion of the court to stay discovery until the issue of qualified immunity is resolved. See
Ballard v. Heineman, 548 F.3d 1132 (8th Cir. 2008).
Under the circumstances presented, permitting discovery while Defendant’s motion
for summary judgment is pending would undermine one of the primary purposes of the
qualified immunity doctrine – avoiding the unnecessary expense and time associated with
litigation.
Accordingly,
IT IS ORDERED:
1)

Plaintiff’s motion to intervene, (Filing No. 82), is denied.

2)

Plaintiff’s motion to conduct discovery, (Filing No. 83), is denied.

November 5, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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