Simmons v. Ferrigno, II et al

Filing 58

DECISION & ORDER and AMENDED SCHEDULING ORDER Simmons's motion to compel and for an extension of the scheduling order and costs 55 is granted in part and denied in part. The City Defendants are directed to provide written responses and produce documents responsive to Simmons's document demands by no later than October 30, 2020. Oral Argument set for 10/20/2020 is cancelled. It is further Ordered that the Court's 4/14/2020 Amended Scheduling Order 53 shall be amended as follow s: Fact Discovery to be completed by 12/7/2020. Motion to Compel due by 2/26/2021. Plaintiff Expert ID due by 12/28/2020. Defendants Expert ID due by 1/25/2021. Expert Discovery to be completed by 2/8/2021. Dispositive Motions due by 4/19/2021. Signed by Hon. Marian W. Payson on 10/13/2020. (KAH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
SILVON S. SIMMONS,
Plaintiff,
v.

DECISION & ORDER and
AMENDED SCHEDULING ORDER
17-CV-6176FPG

JOSEPH M. FERRIGNO, II, et al.,
Defendants.
_______________________________________

Silvon S. Simmons (“Simmons”) filed this action against the City of Rochester,
and its employees Joseph M. Ferrigno, II, Samuel Giancursio, Mark Wiater, Christopher
Muscato, Robert Wetzel, Michael L. Ciminelli (collectively, “City Defendants”), and against
Shotspotter, Inc., SST, Inc., and Paul C. Greene (collectively, “Shotspotter Defendants”)1
asserting claims pursuant to 42 U.S.C. § 1983 and various state law claims arising out of
Simmons’s arrest on April 1, 2016, and his subsequent prosecution. (Docket # 10). Currently
pending before this Court is Simmons’s motion to compel the City Defendants to provide
responses to discovery demands he propounded on January 27, 2020, and for an extension of the
scheduling order and an award of costs associated with the motion. (Docket # 55).
Specifically, Simmons seeks an order compelling the City Defendants to respond
to the request for documents he propounded on January 27, 2020. (Docket # 55-1 at ¶¶ 12-13).
According to Simmons, the City Defendants have ignored his repeated attempts to confer
regarding his discovery requests and their responses remain outstanding. (Id. at ¶ 14).

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Simmons also sued various John Doe defendants. (Docket # 10).

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On September 4, 2020, this Court issued a motion scheduling order requiring the
City Defendants to respond to Simmons’s motion to compel by no later than September 25,
2020, and scheduling oral argument for October 20, 2020. (Docket # 56). The City Defendants
did not oppose the motion. Having received no opposition from the City 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 City Defendants sufficient time to respond to the pending
motion. The City 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, Simmons’s
motion to compel is granted on the grounds that it is unopposed, and the City Defendants are
ordered to provide written responses and produce documents responsive to Simmons’s document
demands by no later than October 30, 2020. The Court declines to award costs in connection
with the motion, although the City Defendants are cautioned that any further non-compliance
with court-ordered deadlines or other obligations may result in the imposition of sanctions,
including the striking of their answer and/or monetary sanctions.
Simmons also requests a 120-day extension of the current scheduling order.
(Docket ## 53, 55). In response, the Shotspotter Defendants requested that any extension
granted by the Court be limited to 60 days. (Docket # 57). As noted above, the City Defendants
have not responded to the pending motion.

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For the reasons explained above, Simmons’s motion to compel and for an
extension of the scheduling order and costs (Docket # 55) is GRANTED in part and DENIED
in part. The City Defendants are directed to provide written responses and produce
documents responsive to Simmons’s document demands by no later than October 30, 2020.
It is further
ORDERED, that this Court’s April 14, 2020 Amended Scheduling Order (Docket
# 53) shall be amended as follows:
1.

All factual discovery in this case, including depositions, shall be

completed on or before December 7, 2020. All motions to compel discovery shall be filed by
February 26, 2021.
2.

Plaintiff shall identify any expert witnesses pursuant to Fed. R. Civ. P.

26(a)(2)(A) and provide reports pursuant to Rule 26(a)(2)(B) and/or disclosures pursuant to Rule
26(a)(2)(C) by December 28, 2020. Defendants shall identify any expert witnesses and provide
reports pursuant to Fed. R. Civ. P. 26 by January 25, 2021. Parties shall complete all discovery
relating to experts, including depositions, by February 8, 2021.
3.

Dispositive motions, if any, shall be filed no later than April 19, 2021.

Unless a consent to proceed before this Court has been filed, such motions shall be made
returnable before Chief Judge Geraci.
4.

A trial date status conference pursuant to Fed. R. Civ. P. Rule 16(e) and

Local Rule 16 will be held, if necessary, at a date and time to be determined by the trial judge
after determination of dispositive motions. If no dispositive motions are filed, counsel shall
immediately contact the trial judge so that a trial date status conference can be scheduled.

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At least seven (7) days prior to the trial date status conference, the parties
shall file a joint case status report setting forth the information described below. If the parties
disagree as to the information to be provided, the report must set forth their different responses.
The joint status report shall contain:
(1)

Nature of the Case: Set forth a brief description of the action,
identifying the parties, all counsel of record, the relief requested,
any affirmative defenses and any relationship the case may have to
other pending actions.

(2)

Motion Practice: Are any motions, dispositive or non-dispositive,
pending? If so, briefly describe the motion. Explain if additional
motion practice is necessary before the matter is ready to be tried.

(3)

Settlement: Describe the status of settlement negotiations. If the
parties believe a court supervised settlement/mediation conference
would be of assistance in resolving the case or narrowing disputed
issues, please state.

(4)

Trial: State whether the case is ready for trial. If not, explain why.
Set forth an estimate of how long the trial will take and whether
the case is jury or non-jury.

No extension of the above cutoff dates will be granted except upon written
application, made prior to the cutoff date, showing good cause for the extension. Application for
extensions should be made to the Magistrate Judge. Joint or unopposed requests to extend the
deadlines set forth in this order need not be made by formal motion, but rather may be sought in

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a letter to the court. Letter requests must detail good cause for the extension and propose new
deadlines.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
October 13, 2020

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