Staple v. Horener et al

Filing 133

MEMORANDUM ORDER denying 130 MOTION to Take Deposition from Herman Staple Outside of Discovery filed by Amato, Pariso, Horener, McDermott, Jenkins, Bennetch. Signed by Magistrate Judge Martin C. Carlson on January 2, 2020. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HERMAN STAPLE
Plaintiff,
v.
LT. HORENER, et al.,
Defendants.

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Civil No. 3:15-CV-2446

(Magistrate Judge Carlson)

MEMORANDUM ORDER
This pro se prisoner civil rights lawsuit is assigned to the undersigned and is
scheduled for trial on January 13, 2020. On December 19, 2019, we received a
motion from the defendants asking for leave to re-open discovery to depose the
plaintiff prior to trial. (Doc. 130). This motion is made one year after the discovery
deadline had closed following eight extensions of that deadline and 2 ½ years after
the defendants had initially obtained court approval to depose the plaintiff but
apparently had not followed through and conducted that deposition.
Noting that there was no indication that the plaintiff concurred in, or was
aware of, this motion we ordered defense counsel to cause a copy of this motion and
our order to be expeditiously delivered to the plaintiff and directed the plaintiff to
respond to the motion on or before January 3, 2020.
We have now received the plaintiff’s objections to this request to re-open
discovery, which opposes the request as untimely and potentially prejudicial since

Staple may not have an opportunity to review and correct the deposition transcript
prior to trial. (Doc. 132). While we are sympathetic to the situation of current defense
counsel who was only very recently assigned to this case, we find that Staple’s
objections are well taken since “where a party has submitted an untimely discovery
request, the court can, and in the exercise of its discretion often should, refuse to
compel compliance with that request. See, e.g., Maslanka v. Johnson & Johnson,
305 F. App'x 848 (3d Cir. 2008) (affirming denial of pro se litigant motion to compel
where discovery demands were untimely); Oriakhi v. United States, 165 F.App'x
991 (3d Cir. 2006) (same); Bull v. United States, 143 F.App'x 468 (3d Cir. 2005)
(same).” Njos v. United States, No. 3:12-CV-1252, 2015 WL 5227838, at *2 (M.D.
Pa. Sept. 8, 2015). In the instant case, the request to depose Staple is untimely and
is made within days of trial. While this is certainly not the fault of the newly
appointed defense counsel who has acted with dispatch, it is potentially prejudicial
to Staple, who objects to re-opening discovery at this late date. Accordingly, Staple’s
objection will be sustained and the motion to re-open discovery (Doc. 130) is
DENIED.
So ordered this 2nd day of January 2020.
s/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge