Kohus v. Ohio State Highway Patrol et al
Filing
126
DECISION AND ENTRY: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S REQUEST FOR FURTHER DISCOVERY PURSUANT TO RULE 56(d); (2) ORDERING THAT DEFENDANTS PROVIDE DOCUMENTS BATES STAMPED 1-2218 TO PLAINTIFF FORTHWITH; AND (3) ORDERING THAT TROOPER POHLABEL'S DEPOSITION BE TAKEN WITHIN THIRTY DAYS FROM THE ENTRY OF THIS ORDER AND THAT DEFENDANTS MAKE HIM AVAILABLE. Signed by Magistrate Judge Michael J. Newman on 9/10/2015. (srb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MATTHEW D. KOHUS,
Plaintiff,
Case No. 3:12-cv-324
vs.
OHIO STATE HIGHWAY PATROL, et al.,
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman
Defendants.
DECISION AND ENTRY: (1) GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S REQUEST FOR FURTHER DISCOVERY PURSUANT TO RULE 56(d);
(2) ORDERING THAT DEFENDANTS PROVIDE DOCUMENTS BATES STAMPED 12218 TO PLAINTIFF FORTHWITH; AND (3) ORDERING THAT TROOPER
POHLABEL’S DEPOSITION BE TAKEN WITHIN THIRTY DAYS FROM THE
ENTRY OF THIS ORDER AND THAT DEFENDANTS MAKE HIM AVAILABLE
This civil case is before the Court on Plaintiff’s motion for further discovery pursuant to
Fed. R. Civ. P. 56(d).1 See docs. 118, 121. Defendants the Ohio State Highway Patrol, Ohio
Department of Public Safety, Jeremy T. Landis, Charles J. Linek, III, Jon T. Payer, Chad J. Neal,
Daniel E. Kolcum and Paul R. Weber (hereinafter collectively referred to as the “State
Defendants”) oppose Plaintiff’s request. Doc. 124. On September 3, 2015, the Court held a
hearing by telephone on Plaintiff’s Rule 56(d) motion. Attorneys Erica Probst, Sloan Spalding,
Ryan Walters, and Tyler Tarney participated. The Court heard extensive argument from all
counsel.
The Court has carefully considered the parties’ written and oral arguments and
Plaintiff’s Rule 56(d) motion is ripe for decision.
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Notably, the discovery period in this case ended on May 26, 2015, see doc. 75 at PageID 1008,
and Defendants filed motions for summary judgment in mid-June 2015. See docs. 98, 108. In addition to
filing the Rule 56(d) motion, Plaintiff also filed a memorandum in opposition to the motion for summary
judgment filed by the State Defendants. Doc. 117. Plaintiff did not oppose the motion for summary
judgment filed by Defendants the Ohio State Trooper Association (“OSTA”) and Larry Phillips
(hereinafter collectively referred to as the “OSTA Defendants”). Plaintiff has since stipulated to
dismissing all claims against the OSTA Defendants. See doc. 125.
Plaintiff requests that the Court: (1) allow Plaintiff to depose Trooper Pohlabel;2 (2) order
Defendants to supplement responses to interrogatories; and (3) direct Defendants to provide
documents bates stamped 1-2218. See doc. 121-1 at PageID 3194-96. During the hearing on
Plaintiff’s motion, counsel for the State Defendants agreed to provide another electronic set of
documents bates stamped 1-2218 to Plaintiff and the Court ORDERS that the State Defendants
do so forthwith. Accordingly, the remaining dispute concerns Plaintiff’s request: (1) to depose
Trooper Pohlabel; and (2) for Defendants to provide complete responses to Plaintiff’s
interrogatory requests.
Under Rule 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). In deciding a Rule
56(d) motion, the Court must consider “[a] number of different factors,” including:
(1) when the [plaintiff] learned of the issue that is the subject of the
desired discovery[;] (2) whether the desired discovery would . . . change[]
the ruling[;] (3) how long the discovery period ha[s] lasted[;] (4) whether
the [plaintiff] was dilatory in [his] discovery efforts[;] and (5) whether the
[defendants] [were] responsive to discovery requests[.]
Plott v. Gen. Motors Corp., Packard Elec. Div., 71 F.3d 1190, 1196-97 (6th Cir. 1995) (internal
citations omitted).
Here, a number of the Plott factors favor denial of Plaintiff’s motion. As the Court
previously noted, the initial Preliminary Pretrial Conference Order was issued on June 19, 2013
-- i.e., over two years ago -- setting an original discovery deadline of February 24, 2014. Doc. 16
at PageID 302; doc. 75 at PageID 1007.
The Court subsequently issued an Amended
Preliminary Pretrial Conference Order on April 16, 2014 -- i.e., over a year ago -- requiring the
2
The parties do not identify Trooper Pohlabel’s first name.
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parties to complete discovery on or before January 13, 2015. Doc. 46 at PageID 724; doc. 75 at
PageID 1007. The discovery deadline was, thereafter, extended two additional times, with the
final discovery deadline being May 26, 2015. See doc. 75 at PageID 1007-08. Thus, the
discovery period in this case has been significant. See docs. 16, 75. Plaintiff, however, waited
until approximately April 2015, i.e., a month before the close of discovery to begin seeking any
discovery. See doc. 75 at PageID 1008 (noting that the Court was “troubled by Plaintiff’s failure
to seek discovery until a month before the discovery deadline”).
The Court does note, however, Plaintiff’s difficulties in prosecuting this case. After
filing his original complaint pro se, see doc. 1 at PageID 1, Plaintiff retained counsel who
entered an appearance on Plaintiff’s behalf on April 1, 2013.
Doc. 9 at PageID 248.
Subsequently, Plaintiff’s retained counsel was suspended from the practice of law in Ohio and,
as a result, was also suspended from the practice of law in this Court. See Dayton Bar Ass’n v.
Scaccia, 21 N.E.3d 290, 296-97 (Ohio 2014); In re Scaccia, No. 1:14-mc-48 (S.D. Ohio Dec. 2,
2014). Thereafter, pursuant to this Court’s Notation Order dated October 13, 2014, Plaintiff
again was pro se in this case until the recent appearance of counsel on May 15, 2015. Doc. 80.
Thus, Plaintiff’s dilatory discovery efforts are somewhat mitigated by the fact that he has not had
the continuity of counsel throughout this case.
With regard to the adequacy of Defendants’ discovery responses, Plaintiff merely states
that “Defendant’s responses to [i]nterrogatories were not complete and contained improper
objections.” Doc. 121 at PageID 319. Plaintiff fails to point to any specific interrogatory
response or objection in his motion, and cites no legal authority in support of his conclusory
contention. Id. During the hearing held on September 3, 2015, Plaintiff’s counsel pointed to
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Defendants’ response to interrogatory 2 and 3 but, again, offered no argument concerning the
propriety of Defendants’ objections.
Based on all of the foregoing, the Court DENIES Plaintiff’s motion as it relates to
interrogatory responses. Although sufficient grounds exist to deny Plaintiff’s motion at it relates
to Trooper Pohlabel, in the interest of justice, the Court GRANTS Plaintiff’s motion in that
regard and ORDERS that such deposition be taken within the next 30 days. The Court also
ORDERS that the State Defendants assist in making Trooper Pohlabel available for deposition.
A supplemental briefing schedule will be set by Judge Rice by separate order.
IT IS SO ORDERED.
Date: September 10, 2015
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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