Marie et al v. American Red Cross et al
Filing
110
OPINION AND ORDER denying re 89 motion for an extension or sanctions and 97 motion. Signed by Magistrate Judge Norah McCann King on 3/20/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SISTER MICHAEL MARIE, et al.,
Plaintiffs,
vs.
Case No. 2:11-cv-474
Judge Watson
Magistrate Judge King
AMERICAN RED CROSS, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Motion of Plaintiffs for
Sanctions and/or Extension of the Discovery Cut-Off Period and the
Dispositive Motion Date (“Plaintiffs’ Motion for an Extension or
Sanctions”), Doc. No. 89, on the response of defendants American Red
Cross and Mary McCord, Doc. No. 96, and on plaintiffs’ reply, Doc. No.
109.
Also before the Court is the February 19, 2013 Motion of
Plaintiffs for Extension of Time to Respond to Motions for Summary
Judgment and for Extension of Discovery Cut-Off Period (“Plaintiffs’
Rule 16(b) and 56(d) Motion”), Doc. No. 97, the response of defendants
Ross County Emergency Agency and David Bethel, Doc. No. 100, and
plaintiffs’ reply, Doc. No. 104.
Plaintiffs’ Rule 16(b) and 56(d)
Motion was filed on February 19, 2013.
Defendants American Red Cross
and Mary McCord (collectively the “ARC defendants”) also filed a
response to that motion, but not until on March 19, 2013.
No. 106.
See Doc.
The ARC defendants’ response will not be considered by the
Court because it was not filed within the time permitted by the local
rules of this Court.
See S.D. Ohio Civ. R. 7.2 (“Any memorandum in
opposition shall be served within twenty-one (21) days from the date
of service set forth in the certificate of service attached to the
Motion.”).
For the reasons that follow, plaintiffs’ motions are DENIED.
I.
Background
Plaintiffs Sister Michael Marie and Sister Mary Cabrini
originally asserted claims against Ross County Emergency Management
Agency and David Bethel (collectively the “RCEMA defendants”) and the
ARC defendants under 42 U.S.C. § 1983, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and Ohio Revised Code §§
4112.02, 4112.99, alleging discrimination, harassment and retaliation
based on plaintiffs’ religion.
Following the original preliminary
pretrial conference, the Court, in consultation with counsel,
established a discovery completion date of August 30, 2012 and a
dispositive motions filing date of September 30, 2012.
Pretrial Order, Doc. No. 26.
Preliminary
The Court also advised the parties “that
the discovery completion date requires that discovery requests be made
sufficiently in advance to permit timely response by that date.”
Id.
On August 23, 2012, plaintiffs filed a motion to extend the
discovery and dispositive motions deadlines.
Amend Discovery Deadline, Doc. No. 55.
Motion of Plaintiffs to
On September 19, 2012, the
Court concluded that plaintiffs had failed to show good cause for the
requested extension but nevertheless granted the motion in part and
extended the discovery completion and dispositive motions deadlines to
October 30, 2012 and November 29, 2012, respectively.
2
Order, Doc. No.
60.
However, the Court limited discovery conducted after August 30,
2012 to that requested by the parties by August 30, 2012.
The
Id.
Court also advised the parties that there would be no further
extension of the discovery completion deadline.
Id.
Notwithstanding that warning, the ARC defendants thereafter filed
a consent motion to extend the date by which depositions must be
completed.
Doc. No. 64.
Consent Motion to Extend Time to Complete Depositions,
The Court granted that motion, extending the discovery
and dispositive motions deadlines to December 14, 2012 and January 13,
2013, respectively.
Order, Doc. No. 69.
The Court again advised the
parties that there would be no further extension of the discovery
completion deadline or of the summary judgment deadline.
Id.
The
Court also denied plaintiffs’ motion to compel, Doc. No. 65, and
amended motion to compel, Doc. No. 66, as moot because plaintiffs had
agreed to withdraw the motions should the Consent Motion to Extend
Time to Complete Depositions be granted.
See Order, Doc. No. 69.
The parties jointly filed yet another motion to extend the
discovery and dispositive motions deadlines on December 14, 2012.
Joint Motion to Extend Time to Complete Discovery and File Dispositive
Motions, Doc. No. 73.
The Court denied that motion on December 17,
2012, reasoning that the parties had failed to establish good cause to
modify the scheduling order.
Order, Doc. No. 74.
On January 14, 2013, the RCEMA defendants filed a motion for
summary judgment, Doc. No. 85, the ARC defendants filed a motion for
summary judgment, Doc. No. 87, and plaintiffs filed Plaintiffs’ Motion
for an Extension or Sanctions.
On February 19, 2013, plaintiffs filed
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Plaintiffs’ Rule 16(b) and 56(d) Motion.
Plaintiffs’ motions seek (1)
sanctions under Rule 37(b)(2)(A) in connection with the ARC
defendants’ alleged failure to comply with the Court’s discovery
orders, (2) an extension of the discovery completion and dispositive
motions deadlines pursuant to Rule 16(b), and (3) an extension of the
discovery completion deadline and of the date by which plaintiffs must
respond to defendants’ motions for summary judgment pursuant to Rule
56(d).1
II.
Discussion
A.
Rule 37(b)(2)(A)
Plaintiffs seek sanctions in the form of attorneys’ fees and
costs and a grant of default judgment against the ARC defendants under
Fed. R. Civ. P. 37(b)(2)(A) in connection with defendants’ alleged
failure to comply with the Court’s discovery orders.
Motion for an Extension or Sanctions, pp. 13-16.
Plaintiffs’
Rule 37(b) of the
Federal Rules of Civil Procedure authorizes the imposition of
sanctions in connection with a party’s “fail[ure] to obey an order to
provide or permit discovery.”
Fed. R. Civ. P. 37(b)(2)(A).
A court
may issue such orders as are just, including, inter alia, orders
“rendering a default judgment against the disobedient party” or
“treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.”
Fed. R. Civ. P.
37(b)(2)(A)(vi), (vii).
Plaintiffs argue that the ARC defendants failed to comply with
the Court’s orders “require[ing] that the ARC Defendants provide the
1
On that same date, plaintiffs in fact filed responses to the motions for
summary judgment. Doc. Nos. 98, 99.
4
identified ARC employees for depositions and require[ing] that the ARC
Defendants fully respond to the written discovery requests of
Plaintiffs.”
Id. at p. 13.
Plaintiffs have not, however, referred to
an order of this Court that specifically required such discovery.
The
Court’s discovery orders, Doc. Nos. 60, 69, 74, simply extended the
discovery completion date and limited the scope of discovery permitted
after August 30, 2012. The Court did not order any party to conduct
particular discovery.
warranted.
Rule 37(b) sanctions are therefore not
See Sokos v. Hilton Hotels Corp., 283 F.Supp.2d 42, 55
(D.D.C. 2003) (“First, it was readily apparent that the plaintiff was
unable to seek sanctions against the defendants pursuant to Rule
37(b)(2) because the rule only provides a remedy to a party in
circumstances when the opposing party fails to comply with a court
order to provide discovery.
Thus, since the Court had not issued an
order to redress a discovery violation committed by the defendants,
the plaintiff's counsel could not seek any relief under this rule.”).
B.
Rule 16(b)
Plaintiffs’ motions also seek an extension of the discovery and
dispositive motions deadlines – by an indeterminate period - “to
enable Plaintiffs to conduct discovery, including discovery beyond the
limited discovery which was initially ordered by the Court.”
Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 16.
Motion for an Extension or Sanctions, p. 16.
See also Plaintiffs’
Specifically, plaintiffs
seek to depose four identified individuals, to depose otherwise
unidentified “additional parties,” and to secure documents that had
been requested of the ARC defendants but which had allegedly neverbeen
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produced.
Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 16.
Plaintiffs
argue that defendants will not be prejudiced by an extension of the
discovery completion and dispositive motions deadlines, that the ARC
defendants failed to fully respond to discovery requests and to
produce employees for depositions, and that the Court’s limitation on
discovery penalizes plaintiffs.
Rule 16(b) of the Federal Rules of Civil Procedure requires that
the Court, in each civil action not exempt from the operation of the
rule, enter a scheduling order that limits the time to, inter alia,
complete discovery and file motions.
(b)(3)(A).
Fed. R. Civ. P. 16(b)(1),
The rule further provides that “[a] schedule may be
modified only for good cause and with the judge’s consent.”
Civ. P. 16(b)(4).
Fed. R.
See also S.D. Ohio Civ. R. 16.2 (“[T]he Magistrate
Judge is empowered to . . . modify scheduling orders upon a showing of
good cause.”).
“‘The primary measure of Rule 16’s ‘good cause’
standard is the moving party’s diligence in attempting to meet the
case management order’s requirements.’”
Inge v. Rock Fin. Corp., 281
F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249
F.3d 807, 809 (8th Cir. 2001)).
“A district court should also
consider possible prejudice to the party opposing the modification.”
Andretti v. Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th
Cir. 2005) (citing Inge, 281 F.3d at 625).
The focus is, however,
“primarily upon the diligence of the movant; the absence of prejudice
to the opposing party is not equivalent to a showing of good cause.”
Ortiz v. Karnes, 2:06-cv-562, 2010 WL 2991501, at *1 (S.D. Ohio July
26, 2010) (citing Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind.
6
1995)).
Whether to grant leave under Rule 16(b) falls within the
district court’s discretion.
Leary v. Daeschner, 349 F.3d 888, 909
(6th Cir. 2003).
The Court notes, initially, that the motions presently before the
Court are the parties’ fourth and fifth requests for an extension to
the discovery deadline.
See Doc. Nos. 55, 64, 73, 89, 97.
The
present motions set forth the progression of plaintiffs’ discovery
efforts and the Court’s discovery orders from plaintiffs’ initial
August 9, 2012 discovery request through the filing of the present
motions.
See Plaintiffs’ Motion for an Extension or Sanctions, pp. 1-
16; Plaintiffs’ Rule 16(b) and 56(d) Motion, pp. 1-16.
Plaintiffs
essentially reargue the previous motions to extend the discovery
deadline by providing a supplemented recitation of the facts
previously presented to the Court.
Plaintiffs also argue that the
Court’s September 19 and December 17, 2012 orders are unfair.2
The Court’s September 19, 2012 order extended the discovery and
dispositive motions deadlines and limited discovery conducted after
August 30, 2012 to the written discovery and depositions requested by
the parties on or before August 30, 2012.
Order, Doc. No. 60.
Plaintiffs argue that the September 2012 order unfairly limited
plaintiffs’ ability “to obtain discovery in regard to their claims
against the RCEMA Defendants” by limiting discovery of the RCEMA
defendants to a single deposition.
Motion, pp. 14-15.
Plaintiffs’ Rule 16(b) and 56(d)
Plaintiffs further argue that the September 2012
2
Plaintiffs did not file objections to the September 19 or December 17, 2012
orders. See Fed. R. Civ. P. 72(a).
7
order “make[s] it impossible for Plaintiff[s] to adequately oppose
Defendants’ Motion for Summary Judgment.”
Id. at p. 14.
See also id.
at p. 5 (“The Court’s order limited and hampered Plaintiffs’ ability
to prepare their case and to obtain discovery at a time when a motion
to dismiss was pending . . . .”).
Plaintiffs now seek to extend the
discovery completion deadline and to permit discovery beyond what had
been requested on or before August 30, 2012.
Id. at p. 16.
The Court’s September 2012 order limited discovery because
plaintiffs had failed to show good cause for the requested
modification of the scheduling order.
3.
See Order, Doc. No. 60, pp. 2-
Despite being advised in the Preliminary Pretrial Order, Doc. No.
26, “that the discovery completion date requires that discovery
requests be made sufficiently in advance to permit timely response by
that date,” id. at p. 2, plaintiffs waited until August 9, 2012, i.e.,
three weeks before the discovery deadline, to seek discovery from the
RCEMA defendants.
Order, Doc. No. 60, p. 2; Plaintiffs’ Rule 16(b)
and 56(d) Motion, p. 4.
The Court noted plaintiffs’ failure in this
regard and limited discovery accordingly.
2-3.
See Order, Doc. No. 60, pp.
Plaintiffs have not persuaded the Court that the September 2012
order was erroneous or that the facts now establish good cause to
further modify the pretrial schedule.
Any limitation in the parties’
ability to seek discovery is a direct result of their own failures to
diligently pursue discovery during the initial discovery period.
The Court’s December 17, 2012 order denied the parties’ joint
motion to extend the discovery completion and dispositive motions
filing deadlines, Doc. No. 73.
Order, Doc. No. 74.
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Plaintiffs argue
that the December 2012 order “penalizes Plaintiffs (who have fully
cooperated in this discovery process) . . . [and] enabl[es] the ARC
Defendants to prevent Plaintiffs from obtaining discovery needed to
prove their claims.”
Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 15.
The order also “make[s] it impossible for Plaintiff[s] to adequately
oppose Defendants’ Motions for Summary Judgment” and “[e]ffectively .
. . determines this case in favor of the Defendants.”
15.
Id. at pp. 14-
See also Plaintiffs’ Motion for an Extension or Sanctions, p. 15.
The Court denied the parties’ joint motion to extend the
discovery completion and dispositive motions filing deadlines because
the parties had failed to show good cause for the requested extension.
See Order, Doc. No. 74, p. 2.
Notably, the parties had been advised
on two prior occasions that there would be no further extension of the
discovery completion deadline.
No. 69.
See Order, Doc. No. 60; Order, Doc.
Plaintiffs have not persuaded the Court that the December
2012 order was erroneous or that plaintiffs have now shown good cause
to modify the pretrial schedule.
Under all these circumstances, the Court concludes that
plaintiffs have failed to establish good cause for yet another
extension of the discovery completion and dispositive motions filing
dates.
C.
See Fed. R. Civ. P. 16.
Rule 56(d)
Plaintiffs’ Rule 16(b) and 56(d) Motion also seeks an extension,
for an indeterminate period, to respond to defendants’ motions for
summary judgment and to conduct discovery.
Rule 56(d) of the Federal Rules of Civil Procedure establishes
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the proper procedure to be followed when a party concludes that
additional discovery is necessary to respond to a motion for summary
judgment:
When Facts Are Unavailable to the Nonmovant.
If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1)
(2)
take
(3)
defer considering the motion or deny it;
allow time to obtain affidavits or declarations or to
discovery; or
issue any other appropriate order.
Fed. R. Civ. P. 56(d).
The affidavit or declaration required by the
rule must “indicate to the district court [the party’s] need for
discovery, what material facts [the party] hopes to uncover, and why
[the party] has not previously discovered the information.”
Cacevic
v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (citing
Radich v. Goode, 866 F.2d 1391, 1393-94 (3d Cir. 1989)).
Rule 56(d)
will not serve to shield parties who were dilatory in conducting the
necessary discovery.
Mallory v. Noble Corr. Inst., 45 F. App’x 463,
469 (6th Cir. 2002) (citing Schaffer v. A.O. Smith Harvestore Prods.,
Inc., 74 F.3d 722, 732 (6th Cir. 1996)).
A motion under Rule 56(d)
may be properly denied where the requesting party “̔makes only general
and conclusory statements [in its affidavit] regarding the need for
more discovery and does not show how an extension of time would have
allowed information related to the truth or falsity of the
[information sought] to be discovered,’”
Ball v. Union Carbide Corp.,
385 F.3d 713, 720 (6th Cir. 2004) (quoting Ironside v. Simi Valley
Hosp., 188 F.3d 350, 354 (6th Cir. 1999)), or where the affidavit
“lacks ‘any details’ or ‘specificity.’”
10
Id. (quoting Emmons v.
McLaughlin, 874 F.2d 351, 357 (6th Cir. 1989)).
The importance of
complying with Rule 56(d) cannot be over-emphasized.
F.3d at 488.
See Cacevic, 226
Finally, whether or not to grant a request for
additional discovery falls within the trial court’s discretion.
Egerer v. Woodland Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).
In the case presently before the Court, plaintiffs have submitted
the Certification and Declaration of Attorney Thomas I. Blackburn in
support of their Rule 56(d) motion.
56(d) Motion, p. 17.
See Plaintiffs’ Rule 16(b) and
Attorney Blackburn certifies that he “repeatedly
. . . communicated with” counsel for the ARC defendants “in an attempt
to schedule the depositions of Michael Carroll, Teals J. Brewer, Bill
Malfara and Bill Maltz.”
Id.
However, Brewer’s deposition was
cancelled by the ARC defendants, the ARC defendants did not provide a
date on which to depose Bill Malfara, and did not provide last known
addresses for Michael Carroll and Bill Maltz until the last day of the
discovery completion period.
Id.
Attorney Blackburn also avers that
Mary McCord and David Gore possess “written and electronic documents
which, while requested, were not produced by the ARC Defendants.”
Id.
According to Attorney Blackburn, counsel for the ARC defendants
“stated that he would look into whether such testified-to-documents
actually existed,” but that he “never got back” to Attorney Blackburn.
Id.
Finally, Attorney Blackburn “declares that the depositions of
those witnesses identified above, as well as depositions of additional
parties and the receipt of requested, but not produced documents, are
needed for Plaintiffs to adequately respond to Defendants’ Motions for
Summary Judgment.”
Id.
11
Attorney Blackburn’s Certification and Declaration is
insufficient to support a Rule 56(d) motion.
First, Attorney
Blackburn’s certification fails to comply with the requirements of 28
U.S.C. § 1746.
Under 28 U.S.C. § 1746, unsworn declarations have the
same force and effect as a sworn affidavit only if “subscribed by [the
declarant], as true under penalty of perjury, and dated, in
substantially the following form: . . . ‘I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true
and correct.
Executed on (date).
(Signature).’”
Id.
Attorney
Blackburn’s certification is not dated and it does not declare under
penalty of perjury that the statements contained in the certification
are true and correct.
Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 17.
This failure violates the strict requirements of Section 1746 and the
Court therefore need not consider this defective declaration.
See,
e.g., Bonds v. Cox, 20 F.3d 697, 702 (6th Cir. 1994) (excluding from
consideration affidavits that were subscribed under penalty of
perjury, but were undated).
Having failed to offer a proper
declaration, plaintiffs have not complied with Rule 56(d).
Even considering the substance of Attorney Blackburn’s
certification, plaintiffs’ request for additional time to conduct
discovery is nevertheless without merit.
Plaintiffs seek to depose
four identified individuals, to depose unidentified “additional
parties,” and to secure documents that were requested from the ARC
defendants but which have allegedly not been produced.
Rule 16(b) and 56(d) Motion, p. 17.
Plaintiffs’
The certification does not,
however, specify what documents are needed and it fails to identify
12
the “additional parties” sought to be deposed.
The certification also
fails to explain why any of the requested discovery is necessary to
enable plaintiffs to respond to the motions for summary judgment or
how plaintiffs expect those materials to help in opposing summary
judgment.3
The certification also fails to set forth any reason
whatsoever why plaintiffs need additional time to respond to the RCEMA
defendants’ motion for summary judgment.
Attorney Blackburn’s
certification simply lacks the specificity required by Rule 56(d).
See Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004) (“Bare
allegations or vague assertions of the need for discovery are not
enough. . . .
In order to fulfill the requirements of Fed. R. Civ. P.
56[d], [the movant] must state with ‘some precision the materials he
hopes to obtain with further discovery, and exactly how he expects
those materials would help him in opposing summary judgment.’”)
(quoting Simmons Oil Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138,
1144 (Fed. Cir. 1996)).
Even considering the substance of Plaintiffs’ Rule 16(b) and
56(d) Motion, plaintiffs’ request for additional time to conduct
discovery is without merit.
Plaintiffs’ motion makes the same
arguments for an extension of time to complete discovery under Rule
56(d) as it does under Rule 16(b).
Compare id. with Reply of
3
Plaintiffs have in fact responded to defendants’ motions for summary
judgment. The responses, which do not comply with the “Limitation Upon
Length of Memoranda” requirements of S.D. Ohio Rule 7.2, specifically state
that the “[e]vidence in this case is sufficient to establish” a genuine issue
of material fact. Plaintiffs’ Memorandum Contra to Defendants, Ross County
Emergency Management Agency’s and David Bethel’s Motion for Summary Judgment,
Doc. No. 99, p. 3. See also id. at pp. 13, 17-19; Plaintiffs’ Memorandum
Contra to Defendants, American Red Cross’ and Mary McCord’s Motion for
Summary Judgment, Doc. No. 98, pp. 10, 16-18.
13
Plaintiffs to Defendants Ross County Emergency Agency and David
Bethel’s Memorandum Contra Motion of Plaintiffs for Extension of Time
to Respond to Motions for Summary Judgment and for Extension of
Discovery Cut-off Period, Doc. No. 104, p. 4 (“This argument is
puzzling to Plaintiffs as Plaintiffs’ Motion contains 16 pages setting
forth Plaintiffs’ arguments of why they have good cause for seeking an
extension of discovery in this case . . . .”).
As the record makes
clear, plaintiffs have not been diligent in pursuing discovery and,
although plaintiffs criticize the Court’s discovery orders, see
Plaintiffs’ Rule 16(b) and 56(d) Motion, p. 14 (“[T]he Court’s initial
order limiting the discovery Plaintiffs could conduct and the Court’s
order denying an extension of the last discovery cut-off date also
make it impossible for Plaintiff[s] to adequately oppose Defendants’
Motion for Summary Judgment.”), p. 15 (“[T]he Court Order of September
19, 2012 (Doc. #60) limited the ability of Plaintiffs to obtain
discovery in regard to their claims against the RCEMA Defendants.
Effectively, the Court Order of December 17, 2012, determines this
case in favor of the Defendants and makes it impossible for Plaintiffs
to adequately respond to Defendants’ Motions for Summary Judgment.”),
plaintiffs did not file objections to those orders.
See Fed. R. Civ.
P. 72(a).
Under the circumstances, plaintiffs have failed to carry their
burden under Rule 56(d) to show an inability to present facts
essential to justify their opposition to defendants’ motions for
summary judgment.
14
WHEREFORE, based on the foregoing, Plaintiffs’ Motion for an
Extension or Sanctions, Doc. No. 89, is DENIED.
Plaintiffs’ Rule
16(b) and 56(d) Motion, Doc. No. 97, is DENIED.
March 20, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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