O'Donnell et al v. Yezzo et al

Filing 136

Order: For the reasons I give supra, Defendant's new evidence does not warrant a second motion for summary judgment. It is, therefore, ORDERED that Defendant's Motion (Doc. 134 ) be denied. So ordered. Judge James G. Carr on 8/28/2023. (D,TM)

Case: 3:17-cv-02657-JGC Doc #: 136 Filed: 08/28/23 1 of 3. PageID #: 5251

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Debra O’Donnell, et al.,

Case No. 3:17-cv-02657-JGC

Plaintiffs
ORDER

v.
G. Michele Yezzo, et al.,
Defendants.

This is a civil rights case under 42 U.S.C. § 1983. On June 2, 2023, I granted in part and
denied in part Plaintiff’s and Defendant’s cross-motions for summary judgment. (Doc. 128).
Plaintiff’s § 1983 Brady and fabrication-of-evidence claims survived. (Id.). On June 27, 2023,
the parties stipulated to dismissal of the Brady claim, and I ordered the same – leaving only the
fabrication-of-evidence claim. (Doc. 130).
Now pending is Defendant’s Motion for Leave to File Second Summary Judgment
Motion. (Doc. 134). Plaintiff opposes the Motion (Doc. 135), and I find that no further briefing is
necessary. For the following reasons, I deny the Motion.
The reason for Defendant’s Motion is a “newly discovered” 1993 Ohio Bureau of
Criminal Investigations Handbook. (Doc. 134, pgID 5235). During a July 5, 2023 status
conference, Defendant alerted me to this discovery. Defendant argues that the Handbook sets
forth the relevant “standard of care for forensic analysis” in 1993 and that she did not breach that
standard of care. (Id., pgID 5236).
Defendant further argues that this evidence warrants summary judgment in her favor
regarding the fabrication-of-evidence claim. Indeed, I had denied Defendant’s motion for

Case: 3:17-cv-02657-JGC Doc #: 136 Filed: 08/28/23 2 of 3. PageID #: 5252

summary judgment on Plaintiff’s fabrication-of-evidence claim, in large part, because Plaintiff
had produced an expert report indicating that the Defendant’s conduct in investigating Plaintiff’s
case was “well beyond” that of a reasonable forensic examiner in 1993. (Doc. 128, pgID 5198).
Such evidence is sufficient to create a reasonable inference that a defendant fabricated evidence.
See Gregory v. City of Louisville, 44 F.3d 725, 744 (6th Cir. 2006).
Defendant has not explained why she only discovered the Handbook in or around July
2023 – approximately nine months after dispositive motions were due and approximately ten
months after the close of discovery.
A party may successfully move to modify a scheduling order for dispositive motions
“only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “primary”
indicator of good cause is the moving party’s demonstrable “diligence in attempting to meet the
case management order’s requirements.” See Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th
Cir. 2002) (internal quotations omitted). “Another relevant consideration is possible prejudice to
the party opposing the modification.” Id.
Defendant has not indicated why she only recently discovered the Handbook despite any
diligent attempts to do so prior to the close of discovery. Nor has she explained why the
Handbook was previously unavailable or undiscoverable. These circumstances are sufficient to
justify denial of the Motion. See Wilson v. Hill, No. 2:08-CV-552, 2012 WL 5511117, at *2
(S.D. Ohio Nov. 13, 2012) (finding that the movant failed to establish diligence in meeting case
schedule requirements when there was “no indication” that evidence “was not available to
defendant prior to the discovery completion or dispositive motions deadlines”).
Additionally, granting Defendant’s Motion would prejudice Plaintiff because a second
motion for summary judgment would be futile and only serve to delay the case. See Longnecker

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Case: 3:17-cv-02657-JGC Doc #: 136 Filed: 08/28/23 3 of 3. PageID #: 5253

v. Three Little Pigs, LLC, No. 1:05 CV 735, 2006 WL 1207945, at *1 (N.D. Ohio May 2, 2006)
(Gaughan, J.) (denying defendant’s request to file a second motion for summary judgment
because it was “untimely and futile”). At most, the Handbook illustrates that there is a disputed
issue of fact regarding Defendant’s compliance with the standard of care expected from a
forensic examiner in 1993. Plaintiff has produced evidence indicating that Defendant fell well
short of that standard; Defendant has produced evidence to the contrary. Defendant’s alleged
fabrication of evidence is therefore in dispute, and she is not entitled to summary judgment on it.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Conclusion
For the reasons I give supra, Defendant’s new evidence does not warrant a second
motion for summary judgment. See also Spengler v. Worthington Cylinders, 514 F. Supp. 2d
1011, 1021 (S.D. Ohio 2007) (denying leave to file a second motion for summary judgment after
discovery was closed and the dispositive motion deadline passed).
It is, therefore, ORDERED that Defendant’s Motion (Doc. 134) be denied.
So ordered.

/s/ James G. Carr
Sr. U.S. District Judge

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