Ezeh v. McDonald

Filing 163

DECISION AND ORDER denying 162 Motion for Summary Judgment without prejudice. No party may file a motion for summary judgment until after the pending motion for sanctions is decided and without first seeking and obtaining leave of the Court. SO ORDERED. Signed by Hon. Elizabeth A. Wolford on 5/8/17. (JPL) (A copy of this Decision and Order has been mailed to Plaintiff)

UNITED STATES DISTRJCT COURT
WESTERN DISTRJCT OF NEW YORK

CHRJSTOPHER EZEH,

DECISION AND ORDER
Plaintiff,
v.

6: 13-CV-6563 EA W

DAVID J. SHULKIN, 1 Secretary of the
Department of Veterans Affairs,
Defendant.

On May 1, 2017, pro se Plaintiff Christopher Ezeh ("Plaintiff') filed a motion for
summary judgment. (Dkt. 162). For the reasons set forth below, Plaintiffs motion is
denied without prejudice.
On May 2, 2016, the Court ordered:
that no party may file any further dispositive motions until fact discovery is
completed, unless the party seeking to file a dispositive motion obtains
leave of this Court and demonstrates in support of any such leave
application that good cause exists for the Court to consider another
dispositive motion prior to the completion of fact discovery.
(Dkt. 144 at 1-2).
Although fact discovery was to be completed by March 1, 2017 (Dkt. 154 ), it was
not completed by that date. By Order of United States Magistrate Judge Jonathan W.
Feldman entered on November 21, 2016, Plaintiff was to be deposed in Magistrate Judge
Feldman's courtroom on January 26, 2017.

(Dkt. 154).

The Magistrate Judge made

himself available to the parties "for the duration of the deposition should any issues arise

Defendant David Shulkin has been substituted pursuant to Fed. R. Civ. P. 25(d).
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which the parties [were] not able to themselves resolve." (Id. at 4). Plaintiff notified the
Court by letter received on January 25, 2017, that he did not intend to appear for the
deposition. (Dkt. 156). Plaintiff then failed to attend the deposition. (Dkt. 15 8-1 at iJ 31;
see Dkt. 160 at 2). Plaintiff's failure to attend, in addition to other alleged discovery
issues, is the subject of Defendant's motion for sanctions which is currently pending
before Magistrate Judge Feldman. (Dkt. 158).
Due to the pending sanctions motion and the facts necessitating its filing, fact
discovery has not been completed. Plaintiff did not request leave to file a dispositive
motion prior to filing the instant motion for summary judgment. Thus, by filing the
motion, Plaintiff is in violation of the Court's May 2, 2016, Decision and Order.
The Court has the "inherent power to control its docket" as "part of its function of
resolving disputes between parties." Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997);
see also US. v. Mosquera, 813 F. Supp. 962, 966 (E.D.N.Y. 1993) ("The district court has
the inherent power to control its own docket to ensure that cases proceed in a timely and
orderly fashion."). This inherent power includes "the discretion to dictate the timing of a
motion." Charter Nat. Life Ins. Co. v. FPL Grp. Capital, Inc., No. 95 CIV. 9067 (SAS),
1997 WL 151033, at *1 (S.D.N.Y. Apr. 1, 1997) (ordering completion of discovery prior
to filing of summary judgment motion); see also Riddle v. Claiborne, No. 00 CIV. 1374
(MBM), 2001 WL 1352456, at *l (S.D.N.Y. Nov. 2, 2001) (directing plaintiff "not to file
any further substantive motions before the close of discovery without leave of the court").
Given Plaintiff's repeated filing of premature summary judgment motions in this
action (see Dkt. 144 ), it is hereby ORDERED that no party may file a motion for

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summary judgment until after the pending motion for sanctions is decided and without
first seeking and obtaining leave from the undersigned.
For the foregoing reasons, Plaintiffs motion for summary judgment (Dkt. 162) is
denied without prejudice.
SO ORDERED.

Dated: May 8, 2017
Rochester, New York

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