Fuller v. Bryant et al

Filing 65

ORDER denying 59 Motion for Issuance of Subpoena; denying 60 Motion for Extension of Time to Complete Discovery; granting 60 Motion for Extension of Time to File Response/Reply; denying 63 Motion to Strike. Plaintiff's response to the Motion for Summary Judgment 55 is due no later than June 18, 2014. Signed by Magistrate Judge Thomas E Rogers, III on 06/04/2014.(dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
JERMAINE TYRONE FULLER,

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Plaintiff,
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-vs)
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JAMES F. ARWOOD, ANDRZEJ E.
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KALINSKI, and TAMMY DOVER,
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Defendants.
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___________________________________ )

Civil Action No.: 4:12-cv-2755-RBH-TER

ORDER

Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Presently
before the court are Plaintiff’s Motion for Issuance of Subpoena (Document # 59), Motion for
Extension of Time (Document # 60), and Motion to Strike Motion for Summary Judgment
(Document # 63).1 All pretrial proceedings in this case were referred to the undersigned pursuant
to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. The
undersigned will address each motion in turn.
Plaintiff asks the court to issue a subpoena to Wayne File at Unique Visions for “all records
in your possession of the tint work performed at the York County Detention Center in the fall of
2009, by your company, Unique Visions.” However, the discovery deadline in this case was March
10, 2014, and Plaintiff filed his Motion on May 9, 2014. Although the Fourth Circuit has not
addressed the issue, an emerging majority of courts have held that a Rule 45 subpoena is discovery
and is untimely if not served within the discovery deadline set by the court. See, e.g., Harris v.
Tietex Intern, Inc., No. 7:08-3020-HFF-WMC, 2009 WL 3157278, *1 (D.S.C. Sept. 28, 2009);
Karagiannopoulos v. City of Lowell, No. 3:05-cv-401-FDW-DCK, 2008 WL 948261, *2 (W.D.N.C.

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Also pending is Defendants’ Motion for Summary Judgment (Document # 55), which will
be addressed by separate Report and Recommendation.

April 2, 2008); Dreyer v. GACS, Inc., 204 F.R.D. 120, 122 (N.D.Ind.2001); Mortgage Information
Services, Inc. v. Kitchens, 210 F.R.D. 562, 566 (W.D.N .C.2002); Marvin Lumber and Cedar Co.
v. PPG Indus., Inc., 177 F.R.D. 443, 443-444 (D.Minn.1977); Intergra Lifesciences I, Ltd. v. Merck,
190 F.R.D. 556, 561 (S.D.Cal.1999); 7 Moore's Federal Practice § 34.03[2][a]. Thus, Plaintiff’s
Motion for Issuance of Subpoena is denied as untimely.
Plaintiff also seeks an extension of time to conduct additional discovery and to respond to
the Defendants’ Motion for Summary Judgment. As noted above, the discovery deadline in this case
was March 10, 2014. Plaintiff asserts that additional discovery is necessary to reply to defenses
raised in the Motion for Summary Judgment, namely, Defendants’ qualified immunity argument.
However, Defendants assert qualified immunity defenses in their Answer (Document # 26), and,
thus, Plaintiff has been on notice since the Answer was filed that Defendants would assert this
defense. Accordingly, Plaintiff fails to show good cause for extending the discovery deadline and
his Motion for Extension of Time is denied in that respect. However, the Motion for Extension of
Time is granted to allow Plaintiff additional time to respond to the Motion for Summary Judgment.
Plaintiff shall have until June 18, 2014, to file his response.
Finally, Plaintiff asks the court to strike portions of the Motion for Summary Judgment.
Plaintiff argues that Defendants have misconstrued his Amended Complaint and these
misconstructions should be stricken from the Motion to keep the focus on Plaintiff’s actual claim
and avoid confusion. Plaintiff’s Motion is improper. He can address any problems he has with the
Motion for Summary Judgment in his response. Therefore, Plaintiff’s Motion to Strike is denied.
For the reasons discussed above, Plaintiff’s Motion for Issuance of Subpoena (Document #
59) is DENIED, Motion for Extension of Time (Document # 60) is DENIED as to the request to
conduct additional discovery and GRANTED as to the request for additional time to respond to the

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Motion for Summary Judgment, and Motion to Strike Motion for Summary Judgment (Document
# 63) is DENIED. Plaintiff’s response to the Motion for Summary Judgment is due no later
than June 18, 2014.
IT IS SO ORDERED.
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
June 4, 2014
Florence, South Carolina

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