Thymes v. Verizon Wireless, Inc. et al

Filing 168

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting in part 155 Notice of Motion and Motion for Continuance to Oppose Summary Judgment Motion by Verizon Wireless, Inc Under Rule 56(D)(F) Relief and Affidavit (Docs 154, 153, 135,, 139). (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CARL GENE THYMES,
Plaintiff,
vs.

Civ. No. 16-66 KG/WPL

VERIZON WIRELESS, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon pro se Plaintiff’s “Notice of Motion and Motion
for Continuance to Oppose Summary Judgment Motion by Verizon Wireless, Inc Under Rule
56(D)(F) Relief and Affidavit (Docs 154, 153, 135, 139)” (Motion for Continuance), filed on
April 6, 2017. (Doc. 155). Defendant filed a response on April 20, 2017, and Plaintiff filed a
reply on April 27, 2017. (Docs. 160 and 163). Having considered the Motion for Continuance
and the accompanying briefing, the Court grants the Motion for Continuance in part, as described
below.
A. Background
In February 2017, Plaintiff served deposition subpoenas on Carlos Restrepo, Narinder
Graywal, Terri Decker, and Rico Javier. (Doc. 155) at 6-13. On March 1, 2017, Defendant
moved to quash the subpoenas. (Doc. 136). Then, on April 3, 2017, Defendant filed a motion
for summary judgment. (Doc. 154).
Three days later, Plaintiff filed his Motion for Continuance pursuant to Fed. R. Civ. P.
56(d) seeking (1) a continuance to respond to the motion for summary judgment, (2) denial of
the motion for summary judgment, and (3) an award of attorney’s fees. Plaintiff based his

Motion for Continuance on the fact that the Magistrate Judge had yet to rule on the motion to
quash the subpoenas and that Plaintiff needs the deposition testimony to respond to the motion
for summary judgment.1
On April 13, 2017, the Magistrate Judge ruled on the motion to quash subpoenas. The
Magistrate Judge held that
Thymes may still depose the Verizon fact witnesses, but must do so within fourteen days
from the date of entry of this Order. The motion to quash and for protective order is
granted to the extent that the fact witnesses are not required to testify or produce
documents as 30(b)(6) witnesses. The fact witnesses will, however, produce and bring
with them to their depositions any responsive documents within their control.
(Doc. 156) at 21. In light of this Order, Defendant states in its response to the Motion for
Continuance that it does not oppose Plaintiff’s request to depose the witnesses, but does oppose
Plaintiff’s request to deny the motion for summary judgment and for an award of attorney’s fees.
Defendant requests that the Court set a deadline for Plaintiff to respond to the motion for
summary judgment after Plaintiff has conducted the depositions and that it be allowed time to
file a reply in support of the motion for summary judgment.
In Plaintiff’s reply in support of his Motion for Continuance, Plaintiff notes that the
depositions have taken place. Plaintiff complains, however, that the deponents did not bring
responsive documents to the depositions, including Interview Guides. Plaintiff, therefore, seeks
sanctions against Defendant for violating the Magistrate Judge’s April 13, 2017, Order.
B. Discussion
Although Plaintiff complains that the deponents did not bring responsive documents to
the depositions as required by the Magistrate Judge, Plaintiff has not shown that any of those
documents, including the Interview Guides, were within the control of the deponents. Without
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Plaintiff attached an affidavit to that effect as required by Rule 56(d). (Doc. 155) at 19-20.
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that showing, the Court cannot conclude that Defendant or the deponents violated the Magistrate
Judge’s April 13, 2017, Order. The Court, therefore, denies Plaintiff’s request for sanctions.
To further the interest of justice in deciding motions on the merits, the Court also denies
Plaintiff’s request to simply deny the motion for summary judgment. Additionally, the Court
denies Plaintiff’s request for attorney’s fees, because (1) Plaintiff is not an attorney, and (2)
Plaintiff does not provide any legal authority to support an award of fees or costs. See D.N.M.
LR-Cv 7.3(a) (“A motion, response or reply must cite authority in support of the legal positions
advanced.”).
Now that the depositions have been completed and Defendant does not oppose Plaintiff’s
request for a continuance to respond to the motion for summary judgment, the Court grants
Plaintiff’s request for additional time to respond to the motion for summary judgment. Plaintiff
will have fourteen days from the entry of this Memorandum Opinion and Order to respond to the
motion for summary judgment and Defendant will have fourteen days to reply.
IT IS ORDERED that
1. the “Notice of Motion and Motion for Continuance to Oppose Summary Judgment
Motion by Verizon Wireless, Inc Under Rule 56(D)(F) Relief and Affidavit (Docs 154, 153, 135,
139)” (Doc. 155) is granted in part;
2. Plaintiff’s requests for sanctions, denial of the motion for summary judgment, and an
award of attorney’s fees are denied;
3. Plaintiff may file a response to the motion for summary judgment within fourteen days
of the entry of this Memorandum Opinion and Order; and

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4. Defendant may file a reply within fourteen days of the filing of Plaintiff’s response.

_______________________________
UNITED STATES DISTRICT JUDGE

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