Charlot v. Donley et al

Filing 135

ORDER finding as moot 110 Motion for Extension of Time; finding as moot 110 Motion to Compel; finding as moot 110 Motion for Modification of Discovery Procedure; denying 126 Motion to Vacate. Signed by Magistrate Judge Shiva V Hodges on 1/31/2013.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Vera Shepard Charlot,

)
)
Plaintiff,
)
)
vs.
)
Honorable Michael B. Donley, Secretary )
)
of the Air Force; Dawn M. Moore; and
)
Clayton D. Leishman,
)
)
Defendants.
)

C/A No.: 3:11-579-MBS-SVH

ORDER

Vera Shepard Charlot (“Plaintiff”) filed this employment action against the
Honorable Michael B. Donley, Secretary of the Air Force, Dawn M. Moore, and Clayton
D. Leishman asserting claims for (1) race discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); (2) retaliation in
violation of Title VII; (3) hostile work environment in violation of Title VII; and (4)
defamation. [Entry #1]. This matter comes before the court on: (1) Plaintiff’s motion to
compel the deposition of government witnesses and extend the time for discovery [Entry
#110]; and (2) Plaintiff’s motion to vacate the undersigned’s order granting Defendants
additional time to answer the complaint [Entry #126].
I.

Motion to Compel
Plaintiff has moved the court to compel the depositions of government witnesses.

On June 15, 2012, Plaintiff served Defendants with notices of deposition for June 26,
2012. [Entry #110-3]. Plaintiff noted the approaching deadline for discovery in her letter.

Id. On June 20, 2012 counsel for Defendant sent Plaintiff a letter advising of potential
problems with scheduling the depositions, but indicating that she was checking on the
deponents’ availability. [Entry #110-2]. Before Plaintiff received counsel’s letter
responding to the notices, she voluntarily withdrew the notices by letter dated June 21,
2012. [Entry #110-3] (stating that “[d]ue to recent events and after a thorough review of
the record of investigation, I have decided to withdraw my request to depose government
witnesses and management officials . . . on June 26, 2012.”). On June 22, 2012, Plaintiff
received counsel’s June 20, 2012 letter. [Entry #110]. On June 27, 2012 the deadline for
the close of discovery, Plaintiff filed the instant motion to compel.
Because Plaintiff voluntarily withdrew the notices of deposition, she has failed to
show that Defendants have not made the deponents available. Plaintiff indicated that she
was content to move forward without the depositions, and she only moved to compel
after she was informed that counsel was having difficulties scheduling the depositions.
[Entry #110-3]. In light of Plaintiff’s voluntary withdrawal of the deposition notices,
Plaintiff’s motion to compel is moot. Additionally, her motion for an extension or other
modification of the discovery procedure based on the motion to compel is also therefore
moot.
II.

Motion to Vacate
On October 11, 2011, Moore and Leishman (“Individual Defendants”) filed a

motion to dismiss in lieu of an answer. On August 9, 2012, the Honorable Margaret B.
Seymour denied the motion to dismiss with regard to Plaintiff’s defamation claim. On
August 20, 2012, counsel for the Individual Defendants requested an extension of time to

file an answer to the complaint in order to consult with the Individual Defendants and
determine whether the United States should be substituted pursuant to the Westfall Act.
The undersigned granted the extension request. [Entry #123].
Plaintiff moves to vacate the undersigned’s order granting the extension. Her
motion is based on her argument that counsel for Individual Defendants had ample time
to address this matter. Plaintiff also cites to one of the undersigned’s prior orders that
granted Plaintiff an amendment to the scheduling order and noted that “no further
amendments to the scheduling order will be granted absent exceptional circumstances.”
[Entry #106]. The undersigned previously extended the deadlines in this case pursuant to
Plaintiff’s requests and/or delays. See e.g., Entry #61, #68, #81, #100, #106. Additionally,
Individual Defendants’ extension request related to one deadline that was not contained
in the scheduling order and was not a request for an amendment to the scheduling order.
Plaintiff’s motion to vacate the order granting Individual Defendants an extension is
denied.
III.

Conclusion
For the foregoing reasons, Plaintiff’s motion to compel and to extend the

discovery deadline [Entry #110] is moot and her motion to vacate [Entry #126] is denied.
IT IS SO ORDERED.

January 31, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge