Riley v. Alford et al

Filing 43

REPORT OF HEARING AND ORDER RE TELEPHONE STATUS CONFERENCE: The parties are to inform the court, no later than January 23, 2012, by email to the Portland, Maine, New Cases Inbox, whether there is need of a discovery dispute teleconference. So Ordered by Magistrate Judge John H. Rich III.(ko)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

DANIEL JOHN RILEY,
Plaintiff
v.
JAMES ALLANDYDY, et al.,
Defendants

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No. 1:10-cv-218-GZS

REPORT OF HEARING AND ORDER
RE: STATUS

Held in Portland, Maine, by telephone on January 11, 2012, at 10:30 a.m.
Presiding:

John H. Rich III, United States Magistrate Judge

Appearances:

For the Plaintiff: Sven Wiberg, Esq.
For the Defendants: Seth Aframe, Esq.
David Plourde, Esq.

The telephone conference was held, as contemplated in my report and order dated December
12, 2011, see Docket No. 42, to discuss the status of discovery that the plaintiff has stated is
necessary to respond to the defendants’ pending summary judgment motion.
Attorney Plourde reported that (i) the plaintiff had effectuated service of a subpoena on the
United States Marshals Service (“USMS”) shortly after Christmas, and (ii) he had asked the USMS
to begin searching for documents responsive to the subpoena soon after the plaintiff’s counsel
emailed him a copy of that subpoena on December 9, 2011. He stated that the USMS will be in a
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position to officially respond to the subpoena and to produce documents on or before Wednesday,
January 18, 2012. The parties’ discovery deadline is January 24, 2012.
In the interest of facilitating an early resolution of any possible discovery disputes arising
from the USMS’ response to the subpoena, I permitted Attorney Plourde to read aloud each of the
seven categories of documents subpoenaed and to briefly describe the USMS’ anticipated response to
each. As to each category, I facilitated a discussion among counsel. Although Attorney Wiberg
questioned several of the anticipated responses, sufficient progress was made that no issue arose
requiring a court ruling.
Attorney Wiberg confirmed that the plaintiff has no outstanding discovery requests besides
the subpoena served on the USMS. Attorney Plourde confirmed that the defendants have no
outstanding discovery requests. Both parties noted, however, that no discovery has yet been
undertaken regarding experts.
I indicated to counsel that, in view of repeated discovery-related enlargements to the
plaintiff’s deadline to respond to the defendants’ summary judgment motion, filed on July 7, 2011,
see Docket No. 30, I suggested that the motion be dismissed without prejudice and then re-filed, at
which time normal response and reply deadlines would run. Counsel indicated that they had no
objection to proceeding in that fashion.
Following further discussion, and without objection, I ORDERED that:
1.

The USMS officially respond to the plaintiff’s subpoena, and produce documents

responsive thereto, no later than January 18, 2012.
2.

The parties meet and confer no later than January 20, 2012, in a good-faith effort to

resolve any discovery disputes arising therefrom, if any should arise.
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3.

The parties inform the court, no later than January 23, 2012, by email to the Portland,

Maine, New Cases Inbox, whether there is need of a discovery dispute teleconference. If there is
such a need, the party or parties requesting court intervention shall briefly describe the nature of the
issue(s) with respect to which the parties disagree and supply to the court a copy of the subpoena and
the USMS’ response thereto.
I advised the parties that I am strongly disinclined, in the face of the repeated discoveryrelated enlargements in the plaintiff’s deadline to respond to the defendants’ summary judgment
motion, to extend the discovery deadline past January 24, 2012, with the caveat that I understand that
no discovery has as yet been taken with respect to expert witnesses and that such discovery would be
required were the defendants’ summary judgment motion to be denied in whole or in part.
Upon the earlier of (i) a report by the parties that no further discovery disputes exist that
require court intervention or (ii) the court’s resolution of any such disputes, I will dismiss without
prejudice and without objection the defendants’ motion for summary judgment and set a deadline for
its re-filing. In the meantime, the plaintiff remains PROTECTED with respect to any deadline to
respond to the pending summary judgment motion.
SO ORDERED.

CERTIFICATE AND NOTICE
A.

This report fairly reflects the actions taken at the hearing and shall be filed
forthwith.

B.

In accordance with Fed. R. Civ. P. 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a
copy thereof. Failure to file a timely objection shall constitute a waiver of the
right to review by the district court and to any further appeal of this order.

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Dated this 11th day of January, 2012.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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