Johnson et al v. City of Fayetteville et al
ORDER denying 74 Motion for Extension of Time to Complete Discovery; denying 78 Motion for Discovery. Counsel is reminded to read the order in its entirety for further information. Signed by US Magistrate Judge Robert B. Jones, Jr. on 2/27/2013. (Edwards, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
DARWIN JOHNSON, LATONJA D.
JOHNSON and BRENDA J. MATHIS,
CITY OF FAYETTEVILLE, HEATHER
NICOLE ST. JOHN, SHANE KOEHLER,
individually, JENNIFER RODRIGUEZ,
individually, PHYLLIS JERNIGAN,
individually, CHIEF THOMAS
BERGAMINE, in his official capacity as
Chief ofFCPD and individually, DALE
IMAN, in his official capacity as City
Manager and individually,
This matter comes before the court on Plaintiffs' Motion to Expand the Number ofDiscovery
Requests [DE-74] and Plaintiffs' Motion to Modify the Discovery Plan [DE-78]. Defendants have
responded in opposition to Plaintiffs' motions and the matters are ripe for ruling. For the reasons
set forth below, Plaintiffs' motions are DENIED.
On September 5, 2012, Plaintiffs Darwin Johnson, Latonja Johnson and Brenda Johnson
Mathis (altogether "Plaintiffs") filed an amended complaint against Defendants City ofFayetteville
("Fayetteville"), Heather Nicole St. John, Shane Koehler, Jennifer Rodriguez, Phyllis Jernigan, Chief
Thomas Bergamine and Dale Iman (altogether "Defendants"). Pls.' First Am. Compl. [DE-30].
Plaintiffs have asserted several individual and official capacity claims against various Defendants
purportedly arising under 42 U.S.C. § 1983 and§ 1985, the North Carolina Constitution, state tort
law and theories of negligence following an investigation by the Fayetteville Police Department
("FCPD") of a traffic accident on April 7, 2011. See id. On October 3, 2012, counsel for all parties
(except Defendant Iman who had not yet been served), having conferred pursuant to Fed. R. Civ. P.
26(f), jointly submitted a Discovery Plan. [DE-45]. 1 The Discovery Plan provided, among other
things, that all fact discovery would be commenced in time to be completed by March 16,2012. ld.
at 3. 2 The Discovery Plan also provided a limit on the number of written discovery requests to be
propounded by each party. In particular, the Discovery Plan allows for
[a] Maximum of 25 interrogatories, including subparts, by each party.
[a] Maximum of25 requests for admission, including subparts, by each party.
[a] Maximum of25 requests for production, including subparts, by each party.
Jd. at 3 (emphasis added).
On October 17, 2012, this court held a telephonic hearing with counsel regarding the parties'
Discovery Plan. [DE-49]. The court entered a Scheduling Order the following day, on October 18,
2012, specifying critical case deadlines. [DE-52]. Per the court's Scheduling Order, all discovery
is to be completed no later than March 16, 2013, with an exception for expert depositions to be
completed at later dates specified in the court's order. Id. at 1. Additionally, the Scheduling Order
adopts all other provisions of the parties' Discovery Plan, as agreed to by the parties, not inconsistent
with the Scheduling Order, including the limits the parties agreed to place on the number of written
discovery. ld. at 2. The Scheduling Order provides further that the order shall not be modified
A docket entry of October 18,2012, indicates Plaintiffs' summons was returned
as executed upon Defendant Iman on October 4, 2012. [DE-51].
The proposed Discovery Plan contained a typographical error setting March 16,
2012 as the discovery deadline.
except by leave of court upon a showing of good cause in accordance with Fed. R. Civ. P. 16. !d.
On or about November29, 2012, PlaintiffDarwinJohnsonpropoundedhis first set of written
discovery requests to Defendant Fayetteville. Pls.' Mem. [DE-74-1] at 2; Opp'n to Pls.' Mot. to
Expand the Number of Discovery Requests ("Defs.' Resp.") [DE-76] at 3; Pl. Darwin Johnson's
First Req. For Admissions [DE-77 -2]. These discovery requests included interrogatories, document
and admission requests. On December 18, 2012, the parties stipulated to a two-week extension of
time for Defendant Fayetteville to respond to the discovery requests. Pls.' Mem. [DE-74-1] at 2;
Defs.' Resp. [DE-76] at 3; [DE-77-3, 4]. In early January, a dispute arose between the parties, based
on the discovery requests propounded by Plaintiff Darwin Johnson, as to the number of written
discovery requests permitted under the court's Scheduling Order. [DE-77-5, 6]. In particular,
according to Defendants, Plaintiff Darwin Johnson's first set of written discovery requests included
35 requests for admission including subparts, 10 requests beyond the 25 allowed for each party. Pl.
Darwin Johnson's FirstReq. for Admissions [DE-77-2]; Defs.' Resp. [DE-76] at3; Pls.' Mem. [DE78-1] at 2. Defendants' counsel proposed two methods of resolving the dispute- either apply the
10 extra requests for admission to another Plaintiff or have Plaintiffs select 10 requests for admission
to strike. [DE-77-5]. According to Defendants, Plaintiffs indicated in a response email on January
4, 2013, that Plaintiffs' counsel would select 10 requests for admission to strike. Defs.' Resp. [DE76] at 4; [DE-77-6]. Thereafter, on January 6, 2013, Plaintiffs propounded written discovery
requests to Defendants Jernigan, Koehler, Rodriguez and St. John. Pls.' Mem. [DE-78-1] at 4.
However, Plaintiffs' counsel subsequently withdrew all Plaintiffs' written discovery requests to
Defendants pending the court's ruling on the instant motions. !d.
Plaintiffs' counsel has conferred with Defendants' counsel regarding consent to an increase
in the number of written discovery requests and an extension oftime in which to conduct discovery,
which Defendants have withheld. Pls,' Mem. [DE-74-1] at 2-3; Defs.' Resp. [DE-76]; Pls.' Mem.
[DE-78-1] at4; Def. St. John's Resp. in Opp'n to Pls.' Mot. [DE-79]; Opp'n to Pls.' Mot. to Modify
the Discovery Plan [DE-80]. The instant motions followed on January 7, 2013 and January 14, 2013.
Fed. R. Civ. P. 16 Standard for Amending a Scheduling Order.
Plaintiffs' motions seek to enlarge the number of written discovery requests permitted in the
Scheduling Order and to extend the time by which to conduct discovery. Because the number of
written discovery requests and the deadline by which to conduct discovery were established in the
court's Scheduling Order, Plaintiffs' motions seek to amend the Scheduling Order, thereby
implicating Fed. R. Civ. P. 16. 3 The Federal Rules of Civil Procedure require the issuance of a
scheduling order early in each case. See Fed. R. Civ. P. 16(b)(2). "The drafters of the Rules
intended [the scheduling] order to control the subsequent course of action so as to improve the
quality of justice rendered in the federal courts by sharpening the preparation and presentation of
cases, tending to eliminate trial surprise and improving, as well as facilitating, the settlement
process." Forstmann v. Culp, 114 F.R.D. 83, 84-85 (M.D.N.C. 1987); see also Fed. R. Civ. P. 16
advisory committee's note, 1983 Amendment, Discussion, Subdivision (b) (explaining that the
scheduling order deals with "problem of procrastination and delay by attorneys in ... discovery").
"[T]he scheduling order is not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril." Forstmann, 114 F.R.D. at 85. To the contrary, it
Plaintiffs concede that Fed. R. Civ. P. 16 governs this dispute. See Pls.' Mot. to
Expand the Number of Discovery Requests [DE-74] at 1; Pls.' Mot. to Modify the Discovery
Plan [DE-78] at 1.
represents "the critical path chosen by the [court] and the parties to fulfill the mandate of Rule 1 in
securing the just, speedy, and inexpensive determination of every action." Marcum v. Zimmer, 163
F.R.D. 250, 253 (S.D. W.Va. 1995). Accordingly, "[a] scheduling order may be modified only for
good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "[T]he touchstone of 'good
cause' under Rule 16(b) is diligence." Marcum, 163 F.R.D. at 255; see also Fed. R. Civ. P. 16
advisory committee's note, 1983 Amendment, Discussion, Subdivision (b) ("[T]he court may modify
the schedule on a showing of good cause if it cannot reasonably be met despite the diligence of the
party seeking the extension."). "'Good cause' is shown when the moving party demonstrates that
the scheduling order deadlines cannot be met despite its diligent efforts." Dent v. Montgomery Cnty.
Police Dep't, 745 F. Supp. 2d 648, 663 (D. Md. 2010); accord Neighbors Law Firm P.C. v.
Highland Capital Mgmt., L.P., No. 5:09-CV-352-F, 2011 U.S. Dist. LEXIS 6195, at *4, 2011 WL
238605, at *2 (E.D.N.C. Jan. 24, 2011); 6A Charles Alan Wright, Arthur R. Miller &Mary Kay
Kane, Federal Practice & Procedure§ 1522.1 (2d. ed. 1987).
Plaintiffs' Motion to Expand the Number of Discovery Requests [DE-74] Fails
to Demonstrate Good Cause.
Plaintiffs have moved to modify the Scheduling Order by (1) expanding the number of
written discovery requests of each party from 25 to 150 and (2) enlarging the time in which to
conduct discovery by 30 days. Pls.' Mot. to Expand the Number of Discovery Requests [DE-74] at
1.4 In support of their motion, Plaintiffs state that "the complexity of this action has become more
apparent to the Plaintiffs as the variety of facts involved in this case are aligned with the different
Plaintiffs' brief in support of the motion indicates Plaintiffs seek to propound 125
additional written discovery requests to Defendants Fayetteville, Bergamine, Iman, Koehler, and
25 additional requests to the remaining Defendants. Pls.' Mem. [DE-74-1] at 5-6.
legal authorities required to produce sufficient evidence to support claims such as municipal liability,
deliberate indifference, and actual and constructive notice." Pis.' Mem. [DE-74-1] at 3. As
Plaintiffs' only example of these perceived complexities, however, Plaintiffs state that "to identify
a persistent, widespread practices [sic] or custom which Plaintiffs are contending constituted the
defendant City's policy, a voluminous number of discovery requests will have to be issued." !d.
Plaintiffs then describe the threshold of proof necessary to demonstrate supervisory liability in a §
1983 case and the need to discover knowledge held by Defendants. !d. Plaintiffs state further that
the parties locations have "changed in a manner that has further complicated this case." !d. at 3-4.
Plaintiffs point out that Plaintiff Darwin Johnson is serving in the armed forces overseas while
Defendant Bergamine has retired, Defendant lman resides in Virginia, and Defendant Koehler is
incarcerated in Ohio. !d. at 4. Finally, Plaintiffs state that extensive discovery is necessary in order
to establish Defendants' knowledge of a widespread pattern of unconstitutional conduct by the
FCPD, and that a majority of the necessary evidence is held by defendants. !d.
Considering Plaintiffs' motion in the context ofRule 16, Plaintiffs have failed to demonstrate
good cause. First, Plaintiffs have failed to identify adequately the complexities experienced or how
they have impacted Plaintiffs' diligence to meet deadlines established by the Scheduling Order.
Indeed, what has been described by Plaintiffs as the basis for modification to the Scheduling Order
is the general nature of a § 1983 action. Plaintiffs offer no basis to conclude they cannot satisfy the
case deadlines despite their diligence. The burden alone of having to conduct extensive discovery,
as described by Plaintiffs, fails to meet the threshold of good cause. Furthermore, no showing has
been made that the nature of this case has changed materially since the entry of the Scheduling Order
so as to interfere with Plaintiffs' efforts to meet the deadlines set by the court. While Plaintiffs
explain that some of the parties are not located in North Carolina, Plaintiffs fail to articulate how
these circumstances have impeded their efforts to satisfy the terms of the Scheduling Order, nor do
these developments appear to be recent. Indeed, the court was apprised of Darwin Johnson's
deployment during the telephonic discovery conference with the parties in October prior to
discovery. There was no indication by Plaintiffs that Darwin Johnson's service was an impediment
to meeting the requirements of the Scheduling Order, nor for that matter, was there any confusion
expressed to the court as to the terms of the parties' proposed Discovery Plan. Finally, Plaintiffs'
argument that the majority of the evidence is held by Defendants is neither unusual, nor does it
appear from Plaintiffs' argument to be a development that has occurred since entry ofthe Scheduling
Order. In sum, none ofPlaintiffs' purported reasons constitute good cause to modify the Scheduling
Plaintiffs' Motion to Modify the Discovery Plan [DE-78] Fails to Demonstrate
Plaintiffs' second motion to modify the Scheduling Order requests that the court clarify "the
precise maximum number ofDiscovery Requests (Interrogatories, Documents, and Admissions) that
each plaintiff may individually propound upon each individually named defendants [sic]." Pis.' Mot.
to Modify the Discovery Plan [DE-78] at 1. Additionally, Plaintiffs request an enlargement of
written discovery to permit 75 discovery requests to be propounded to each individually named
defendant and an enlargement of the discovery period from thirty to sixty days. !d. at 1-2; Pis.'
Mem. [DE-78-1] at 6. In support of Plaintiffs' second motion, Plaintiffs describe the discovery
dispute between the parties regarding the terms of the Discovery Plan relating to the number of
permissible written discovery requests. Plaintiffs' counsel states that based upon its previous
experience, counsel has "always propounded discovery on behalf of each named plaintiff against
each named defendant" and has "always proceeded as if each individual Plaintiff could serve each
individual defendant a maximum of seventy-five (75) discovery requests". Pis.' Mem. [DE-78-1]
at 3-4. Plaintiffs concede, however, that the parties stipulated to a maximum of25 interrogatories,
25 document requests and 25 requests for admission per party in the Discovery Plan. Id. at 4.
Plaintiffs' memorandum addresses further the purported need for additional discovery and an
extension of the discovery period based on the particular nature of the claims asserted in the
Properly viewed in the context of Rule 16, Plaintiffs' purported misunderstanding of how
discovery would proceed in this case based on its previous litigation experience does not show
Plaintiffs' diligence and a misunderstanding is of no merit in the court's good cause determination. 5
Plaintiffs have not shown that the discovery schedule cannot be met despite their diligence.
Furthermore, Plaintiffs have failed to articulate any material change in the circumstances of this case
that rise to the level of impairing their reasonable diligence to meet the requirements of the
Indeed, were the court to allow either of Plaintiffs' motions to modify the Scheduling Order
on the grounds asserted, it is foreseeable that such grounds would naturally emerge from a number
of contexts as a case develops, thereby providing a basis for the perpetual extension of deadlines
contained in the Scheduling Order. Such a prospect is contrary to the established purpose of Rule
Plaintiffs' concession that the plain terms of the Discovery Plan provide for 25
interrogatories, requests for production and requests for admission to be served by each party,
belies any argument that the Discovery Plan allowed for greater discovery. See Pis.' Mem. [DE78-1] at 4.
16 and the importance ofthe court's Scheduling Orders.
For the reasons set forth above, Plaintiffs' Motion to Expand the Number of Discovery
Requests [DE-74] and Plaintiffs' Motion to Modify the Discovery Plan [DE-78] are DENIED.
So ordered, this 27th day of February, 2013.
United States Magistrate Judge
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