USA Ex Rel. Wilson, et al v. Graham Co Soil & Wat, et al

Filing 364

ORDER denying 361 Request for Leave to Redepose Defendant Billy Brown. Signed by District Judge Martin Reidinger on 04/08/2015. (Pro se litigant served by US Mail.)(klb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:01-cv-00019-MR

UNITED STATES OF AMERICA,
ex rel. KAREN T. WILSON,

)
)
)
Plaintiff,
)
)
vs.
)
)
)
GRAHAM COUNTY SOIL & WATER )
CONSERVATION DISTRICT, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Request for Leave
to Redepose Defendant Billy Brown.

[Doc. 361].

Defendants Graham

County, Dale Wiggins, Raymond Williams, Lynn Cody, Graham County Soil
and Water Conservation District, Gerald Phillips, Allen Dehart, Lloyd
Millsaps, Cherokee County Soil and Water Conservation District, Bill Tipton,
C.B. Newton, and Eddie Wood (“Moving Defendants”) oppose the Plaintiff’s
motion. [Doc. 362].

I.

PROCEDURAL BACKGROUND
The procedural history of this case, as is relevant to the present motion,

was previously summarized by United States District Judge Lacy H.
Thornburg1 as follows:
On September 29, 2006, the deposition of Defendant
Billy Brown was conducted by Plaintiff’s counsel. The
Pretrial Order and Case Management Plan provided
that discovery would close on November 1, 2006,
and dispositive motions were to be filed no later than
December 1, 2006. Plaintiff’s counsel admit that they
did not inquire as to the status of the deposition
transcript for Defendant Brown. Indeed, it appears
that a defense attorney called the court reporting
service to inquire about the transcript which
prompted that service to admit to Plaintiff’s counsel
by letter sent December 1, 2006, and received
December 4, 2006, that the deposition had not been
successfully recorded due to computer error.
Although the court reporting service was aware of the
problem, they did not disclose it until defense called
to inquire as to the status of the transcript. As soon
as defense counsel learned of this situation, James
Longest, who represents Defendants Cherokee
County Soil & Water Conservation District, Bill
Tipton, Eddie Wood and C.B. Newton, offered to reconduct Brown’s deposition on December 7 or 8 or
any time during the week of December 11, 2006.
The attorneys for other Defendants made similar
offers. Indeed, counsel for one of those Defendants
called the reporting service and received a promise
that the transcript would be produced within 48
Upon Judge Thornburg’s retirement in 2009, the case was reassigned to the
undersigned.
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hours. All defense counsel claim that Plaintiff’s
counsel never responded to this offer.
Instead, Plaintiff’s counsel filed [an] “emergency
motion” requesting the Court to extend the time
within which they must respond to the motions for
summary judgment until 14 days after the deposition
is re-conducted, an event which they claim will occur
no later than January 10, 2007.
[Doc. 254 at 2-3]. The Court denied the Plaintiff’s motion for an extension of
time, noting that the Plaintiff had failed to show that Brown’s deposition
testimony was essential to justifying the Plaintiff’s opposition to the pending
summary judgment motions. [Id. at 3 (noting that plaintiff’s counsel had
“alleged merely that ‘Brown’s testimony potentially is relevant to each of the
defendants’ motions”)].
Thereafter, the Plaintiff filed her responses to the Defendants’
summary judgment motions, along with declarations of counsel filed
pursuant to Rule 56(f) [now Rule 56(d)] of the Federal Rules of Civil
Procedure. [Docs. 255-258]. Those declarations stated that Brown needed
to be redeposed because Brown was a “named Defendant” and his
deposition “is necessary to present facts essential to justify Wilson’s
opposition to the defendants’ summary judgment motion.”

[See, e.g.,

Declaration of Mark Hurt, Doc. 258-2 at ¶3]. On March 13, 2007, Judge
Thornburg entered an Order denying the Plaintiff’s request to conduct a new
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deposition of Defendant Brown, noting that the Plaintiff still had failed to
identify “any portion of Brown’s previous testimony that would support her
case.” [Doc. 274 at 98].
The Court granted the Defendants’ motions for summary judgment on
the grounds that the Court lacked subject matter jurisdiction over the action,
and the case was dismissed. [Id. at 99]. The Plaintiff appealed both rulings
to the Fourth Circuit Court of Appeals. Because the Fourth Circuit reversed
on the jurisdictional issue, it did not address the propriety of Judge
Thornburg’s ruling on the Plaintiff’s Rule 56(f) [now Rule 56(d)] motion.
II.

DISCUSSION
Judge Thornburg’s prior orders denying the Plaintiff additional time to

redepose Defendant Brown are interlocutory rulings, which the Court may
reconsider at its discretion at any time prior to the entry of a final judgment.
See American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th
Cir. 2003). As a general rule, the Court will reconsider an interlocutory order
where “(1) there has been an intervening change in controlling law; (2) there
is additional evidence that was not previously available; or (3) the prior
decision was based on clear error or would work manifest injustice.” Akeva
L.L.C. v. Adidas America, Inc., 385 F.Supp.2d 559, 566 (M.D.N.C. 2005).
Ultimately, the decision whether to reconsider or modify an interlocutory
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order is a matter within the discretion of the Court. American Canoe Ass’n,
326 F.3d at 515.
Here, the Plaintiff has not identified any intervening change in law or
any newly discovered evidence which would justify reconsideration of Judge
Thornburg’s prior orders. Moreover, the Plaintiff fails to demonstrate any
clear error in Judge Thornburg’s rulings or any manifest injustice that would
result therefrom. In seeking reconsideration of Judge Thornburg’s orders,
the Plaintiff continues to rely on her blanket assertion that Defendant Brown’s
deposition is necessary to “present facts essential to justify” her opposition
to the Defendants’ summary judgment motions. Yet, the Plaintiff still fails to
identify any information gleaned from Defendant Brown’s previous
deposition which would be essential to justifying such opposition. See Fed.
R. Civ. P. 56(d) (2015). Accordingly, the Plaintiff’s request for leave to
redepose Defendant Billy Brown is denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Request for Leave
to Redepose Defendant Billy Brown [Doc. 361] is DENIED.
IT IS SO ORDERED.

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