Heyliger v. Krygier et al

Filing 46

DECISION AND ORDER and AMENDED SCHEDULING ORDER. (Please Note: This docket text may NOT contain the entire contents of the attached Order. It is your responsibility to read the attached Order and download it for future reference. Dire ct any questions to the Chambers of the Judge who entered this Order.) Plaintiff's motion to compel, for costs, and to extend the scheduling order 45 is granted in part and denied in part. Plaintiff's motion to compel discovery re quests and for costs is denied. Plaintiff's motion to extend the scheduling order is granted. Fact Discovery to be completed by 3/20/17. Motions to compel discovery due by 4/17/2017. Dispositive motions due by 7/5/2017. Responding papers due by 8/2/2017. Reply papers due by 8/16/2017. Signed by Hon. Marian W. Payson on 2/9/17.(CMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
DEREK A. HEYLIGER
DECISION & ORDER
AND AMENDED
SCHEDULING ORDER
Plaintiff,
14-CV-6123W
v.
JOYCE KRYGIER et al.,
Defendants.
_______________________________________

Plaintiff Derek A. Heyliger (“Heyliger”) filed this action pro se asserting that the
defendants, Joyce Krygier, S. Casaceli, Paul Black, and Beall (collectively, “defendants”)
violated his constitutional rights during his incarceration at Wende Correctional Facility.
(Docket # 8). Currently pending before the Court is Heyliger’s motion to compel responses to
interrogatories and a document request, to extend the scheduling order, and for costs. (Docket
# 45). For the reasons discussed below, Heyliger’s motion is granted in part and denied in part.
Heyliger maintains that he propounded four sets of interrogatories and his second
request for production of documents to defendants on December 28, 2016. (Docket # 45).
Heyliger further maintains that defendants failed to respond to those discovery requests within
the thirty-day deadline set forth in Rules 33 and 34 of the Federal Rules of Civil Procedure.
(Id.). A review of the docket, however, reveals that the defendants responded to the discovery
requests on February 2, 2017, the same day on which Heyliger apparently served the pending
motion. (Docket ## 40-44). Accordingly, his request for an order compelling the responses
(Docket # 45) is DENIED as MOOT.

Heyliger also seeks costs in connection with the motion. (Docket # 45). Rule 37
of the Federal Rules of Civil Procedure provides that if a motion to compel is granted or if the
“requested discovery is provided after the motion was filed – the court must, after giving an
opportunity to be heard, require the party . . . whose conduct necessitated the motion . . . to pay
the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”
Fed. R. Civ. P. 37(a)(5)(A). Courts are afforded broad discretion in imposing sanctions.
Corporation of Lloyd’s v. Lloyd’s U.S., 831 F.2d 33, 36 (2d Cir. 1987) (citing Nat’l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976)). A request for fees may be
denied where (1) the movant did not make a good faith effort to resolve the dispute before filing
the motion; (2) the non-moving party’s failure to provide the discovery response was
“substantially justified”; or (3) the award of fees would be unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)(iii).
As an initial matter, the Court has not granted Heyliger’s motion to compel,
because the responses have already been provided. In any event, although Heyliger seeks costs
in connection with the motion, he has failed to demonstrate his costs or that he made a good faith
effort to resolve the dispute with defendants before filing the motion. Accordingly, that portion
of Heyliger’s motion seeking costs (Docket # 45) is DENIED. See Fed. R. Civ. P.
37(a)(5)(A)(i); Lozano v. Peace, 2005 WL 1629644, *2-3 (E.D.N.Y. 2005) (declining to grant
request for costs where pro se plaintiff failed to demonstrate any expenditures).
Finally, Heyliger seeks a sixty-day extension of the scheduling order. (Docket #
45). On February 8, 2017, during a telephone call with chambers staff, counsel for defendants
advised the Court that they did not object to Heyliger’s request for the extension. Accordingly,

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that portion of Heyliger’s motion (Docket # 45) that seeks an extension of the scheduling order
is GRANTED. It is hereby
ORDERED, that the current scheduling order (Docket # 28) is amended as
follows:
1.

All discovery in this case shall conclude on March 20, 2017. All motions

to compel discovery shall be made returnable on or before April 17, 2017.
2.

All dispositive motions shall be filed no later than July 5, 2017. NOTE:

If the dispositive motion is filed against a party who is appearing in this action pro se, the
moving party must include the advisement set forth in the notice attached to this Order.
3.

Responding papers are due by August 2, 2017. Reply papers, if any, shall

be filed by August 16, 2017. The motion will be taken under advisement without oral argument.
4.

If no dispositive motions are filed, defense counsel shall notify the Court

in writing on or before the dispositive motion deadline date.
5.

No extension of the above cutoff dates will be granted except upon written

joint motion, filed prior to the cutoff date, showing good cause for the extension.
6.

In accordance with Fed. R. Civ. P. 16(f), if a party or party’s attorney

fails to obey this scheduling order or fails to participate in good faith, this Court will enter
appropriate sanctions against that party or that party’s attorney, including dismissal of
this action, if appropriate.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
February 9, 2017
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PRO SE NOTICE

Plaintiff is hereby advised that the defendant has asked the Court to decide this case
without a trial, based on written materials, including affidavits, submitted in support of the
motion. THE CLAIMS PLAINTIFF ASSERTS IN HIS/HER COMPLAINT MAY BE
DISMISSED WITHOUT A TRIAL IF HE/SHE DOES NOT RESPOND TO THIS
MOTION by filing his/her own sworn affidavits or other papers as required by Rule 56(e).
An affidavit is a sworn statement of fact based on personal knowledge that would be
admissible in evidence at trial.
In short, Rule 56 provides that plaintiff may NOT oppose summary judgment
simply by relying upon the allegations in the complaint. Rather, plaintiff must submit
evidence, such as witness statements or documents, countering the facts asserted by the
defendant and raising issues of fact for trial. Any witness statements, which may include
plaintiff’s own statements, must be in the form of affidavits. Plaintiff may file and serve
affidavits that were prepared specifically in response to defendant’s motion for summary
judgment.
Any issue of fact that plaintiff wishes to raise in opposition to the motion for
summary judgment must be supported by affidavits or by other documentary evidence
contradicting the facts asserted by defendant. If plaintiff does not respond to the motion
for summary judgment on time with affidavits or documentary evidence contradicting the
facts asserted by defendant, the Court may accept defendant’s factual assertions as true.
Judgment may then be entered in defendant’s favor without a trial.
Pursuant to Rules 7(a) and 56(a) of the Local Rules of Civil Procedure for the
Western District of New York, plaintiff is required to file and serve the following papers in
opposition to this motion: (1) a memorandum of law containing relevant factual and legal
argument; (2) one or more affidavits in opposition to the motion; and (3) a separate, short,
and concise statement of the material facts as to which plaintiff contends there exists a
genuine issue to be tried, followed by citation to admissible evidence. In the absence of
such a statement by plaintiff, all material facts set forth in defendant’s statement of
material facts not in dispute will be deemed admitted. A copy of the Local Rules to which
reference has been made may be obtained from the Clerk’s Office of the Court.
If plaintiff has any questions, he/she may direct them to the Pro Se Office.
Plaintiff must file and serve any supplemental affidavits or materials in opposition
to defendant’s motion no later than the date they are due as provided in Rule 7(b) of the
Local Rules of Civil Procedure for the Western District of New York.

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