Howell v. Monroe County et al
DECISION & ORDER Howell's motion to compel and for an extension of the scheduling order 27 is granted. County Defendants are ordered to provide written responses and produce documents responsive to Howell's document demands by no later th an 7/7/2017. The Court will issue amended scheduling deadlines during the status conference currently scheduled for 6/20/2017. Oral argument scheduled for June 20, 2017, is CANCELLED. The status conference shall proceed on that date and time as scheduled. Signed by Hon. Marian W. Payson on 6/13/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
MONROE COUNTY, et al.,
William Howell (“Howell”) filed this action against Monroe County, Correctional
Medical Care, Inc. (“CMC”), and several individual defendants employed by either Monroe
County or CMC (collectively “County Defendants”), asserting claims under 42 U.S.C. § 1983
and various state law claims arising out of his medical treatment while incarcerated at the
Monroe County Jail.1 (Docket # 1). Currently pending before this Court is Howell’s motion to
compel the County Defendants to provide responses to discovery demands propounded by
Howell and for an extension of the scheduling order. (Docket # 27).
Specifically, Howell seeks an order compelling the County Defendants to respond
to the request for documents he propounded on July 15, 2016. (Docket ## 27-1 at ¶¶ 4-5; 27-2).
According to Howell, despite repeated representations from the County Defendants that
responses were forthcoming, the responses remain outstanding. (Docket # 27-1 at ¶¶ 6-7).
Additionally, Howell requests an extension of the current scheduling order. (Id. at ¶ 9).
Howell also filed this action against Shahid Ali, N.P. (“Ali”), but the pending motion does not seek any
relief against that defendant. (Docket ## 1, 27).
On May 1, 2017, this Court issued a motion scheduling order requiring the
County Defendants to respond to Howell’s motion to compel by no later than May 23, 2017, and
scheduling oral argument for June 20, 2017. (Docket # 28). The County Defendants did not
oppose the motion. Having received no opposition from the County Defendants, the Court
hereby cancels the oral argument.
Failure to oppose a pending motion may be fairly construed as a lack of
opposition to the requested relief or as a waiver of the party’s right to be heard in connection
with the motion. See, e.g., TCPIP Holding Co. v. Haar Commc’ns Inc., 2004 WL 1620950, *4
(S.D.N.Y. 2004) (defendant’s failure to respond to motion was sufficient basis to grant motion
by default); Loew v. Kolb, 2003 WL 22077454, *1 (S.D.N.Y. 2003) (same). In this case, the
motion scheduling order afforded the County Defendants sufficient time to respond to the
pending motion. The County Defendants have failed to oppose the motion and have not
contacted the Court to request an extension of the deadline to file a response to the motion.
Accordingly, Howell’s motion to compel is granted on the grounds that it is unopposed, and the
County Defendants are ordered to provide written responses and produce documents responsive
to Howell’s document demands by no later than July 7, 2017. The County Defendants are
cautioned that non-compliance with court-ordered deadlines or other obligations may result in
the imposition of sanctions, including the striking of their answer. Howell’s motion to extend
the current scheduling order is granted. The Court will issue amended scheduling deadlines
during the status conference currently scheduled for June 20, 2017.
Accordingly, Howell’s motion to compel and for an extension of the scheduling
order (Docket # 27) is GRANTED. Oral argument scheduled for June 20, 2017, is
CANCELLED. The status conference shall proceed on that date and time as scheduled.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
June 13, 2017
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