BidZirk LLC et al v. Smith

Filing 98

ORDER granting in part and denying in part 93 Motion to Amend Scheduling Order; denying 96 Motion for Extension of Time; denying 96 Motion for Sanctions; denying 96 Motion to Amend Answer; and REPORT AND RECOMMENDATION recommending 96 Motion to Dismiss be denied. Signed by Judge William M Catoe on 5/21/07.(ladd, ) Additional attachment(s) added on 5/21/2007 (jtho, ). Modified on 5/21/2007 (jtho, )added Objection Notice.

BidZirk LLC et al v. Smith

Doc. 98

6:06-cv-00109-HMH

Date Filed 05/21/2007

Entry Number 98

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION BidZirk, LLC, Daniel G. Schmidt, III, and Jill Patterson, Plaintiffs, vs. Philip Smith, Defendant. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 6:06-0109-HMH-WMC ORDER AND REPORT OF MAGISTRATE JUDGE

This matter is before the court on several motions. represented by counsel, and the defendant is proceeding pro se.

The plaintiffs are Pursuant to the

provisions of Title 28, United States Code, Section 636(b)(1)(A) and Local Civil Rule 73.02)(B)(2)(e) D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. In their complaint, the plaintiffs allege claims for trademark dilution, defamation, and invasion of privacy. In a status hearing held before this court on May 2, 2007, the plaintiffs were directed to provide the court with a proposed amended scheduling order, which the plaintiffs did on May 7, 2007. The defendant filed his opposition to the motion to amend the scheduling order on May 11, 2007. The defendant argues that the proposed scheduling order is "unreasonable" as it would "take this case well beyond 2.5 years." The defendant also argues that the plaintiffs have abused discovery and requests that "he be granted an extension for discovery." The defendant's allegations of discovery abuse were ruled upon by this court on May 7, 2007. Further, the defendant has failed to identify any discovery that he needs, and he has provided no explanation for his failure to engage in discovery before the expiration of discovery on August 6, 2006. As for the defendant's complaint that this case has gone on too long, this court agrees. However, the

Dockets.Justia.com

6:06-cv-00109-HMH

Date Filed 05/21/2007

Entry Number 98

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proposed amended scheduling order submitted by the plaintiffs is reasonable, with minor modifications. An amended scheduling order will be filed along with this order. The defendant has also moved "for dismissal, judgment for slander of title, plea acceptance." The defendant has cited no basis for dismissal of this case. The defendant's request for judgment in "the amount of $15,000 for the slander of title on my residence" is inappropriate as there is no such claim before this court.1 Construing the motion as a motion to amend his answer to add a counterclaim for slander of title, that motion is denied. Should the plaintiff wish to pursue such a claim, the complaint should be filed in state court. Now, therefore, based upon the foregoing, IT IS ORDERED that: (1) the plaintiffs' motion to amend scheduling order (doc. 93) is granted in part and denied in part; (2) the defendant's motion for sanctions against the plaintiffs' attorney (doc. 96) is denied; (3) the defendant's request for extension of discovery (doc. 96) is denied; and (4) the defendant's motion to amend his answer (doc. 96) is denied. IT IS RECOMMENDED that the defendant's "motion for dismissal, judgment for slander of title, plea acceptance" (doc. 96) be denied.

s/W illiam M. Catoe United States Magistrate Judge May 21, 2007 Greenville, South Carolina

By order dated May 7, 2007, this court ordered the plaintiffs to cancel the lis pendens filed with regard to the defendant's condom in iu m . The plaintiffs' attorney has advised the court that the lis pendens has been c a n c e lle d .

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