Walker v. Krebs et al

Filing 89

ORDER denying 78 Motion for Clarification; denying 79 Motion for Oral Argument; denying 80 Motion to Modify Scheduling Order; granting 81 Motion for Copy of Docket Sheet; and granting 84 Motion for Protective Order. Signed by U.S. District Judge Lawrence L. Piersol on 7/1/2020. (CLR) Modified on 7/1/2020 delivered to Plaintiff with copy of Docket Sheet via USPS (CLR).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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CLAYTON WALKER,
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CIV 18-4015
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Plaintiff,
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-vs*
ORDER
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STEVE BARNETT, Secretary of State,
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in his official capacity,
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Defendant.
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Plaintiff, Clayton G. Walker (“Walker”), has filed the following documents in this case:
motion for clarification (Doc. 78), motion for oral argument (Doc. 79), motion to modify scheduling
order (Doc. 80), motion for copy of docket (Doc. 81), objection to scheduling order (Doc. 83), and
a letter regarding pending motions (Doc. 88). Defendant, Secretary of State Steve Barnett
(“Barnett”), has filed a motion for protective order. (Doc. 84.)

BACKGROUND
The sole issue in this case is whether SDCL § 12-7-1.2 is unconstitutional because it requires
independent candidates for governor to select a lieutenant governor running mate much earlier than
party candidates. On January 27, 2020, Walker moved for a Scheduling Order. (Doc. 66.) On
January 30, 2020, the Court granted the motion. (Doc. 67.) Because this case had been pending for
almost two years and it involves an election issue, the Court encouraged the parties to complete a
report of their discovery plan as soon as possible and to recommend deadlines that will allow for the
expedited resolution of the case. (Doc. 67.) The Rule 16 Scheduling Order that was issued on April
28, 2020 gave the parties sufficient time to complete discovery and otherwise prepare their case for
disposition. (Doc. 77.) A court trial is scheduled to begin on Tuesday, October 6, 2020.

1. Plaintiffs’ Motions and Miscellaneous Filings (Docs. 78, 79, 80, 81, 83 and 88)
Most of Walker’s currently pending motions and filings are in regard to the Rule 16
Scheduling Order entered on April 28, 2020. He asks for clarification, modification and oral
argument. (Docs. 78, 79 and 80.) In his objection to the scheduling order, Walker requests the
deadline to add parties and amend pleadings be changed to after the close of discovery. (Doc. 83.)
For the following reasons, the Court denies Walker’s motions.
Scheduling orders pursuant to Rule 16(b)(1) “assure[ ] that at some point both the parties and
the pleadings will be fixed.” Rule 16(b), Federal Rules of Civil Procedure, advisory committee
notes—1983 Amendment; see also Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir.
2006) (“Adherence to [scheduling order] deadlines is critical to achieving the primary goal of the
judiciary: ‘to serve the just, speedy, and inexpensive determination of every action.’ ”) (quoting
Fed.R Civ.P. 1).
Walker has made no showing that the Scheduling Order in this case needs to be clarified or
modified, or that oral argument is necessary on any issue. His motions are denied and his objection
is overruled.
The Court will, however, grant Walker’s motion for a copy of the docket sheet, (Doc. 81),
and will direct the Clerk of Court to send a copy of the docket sheet to Walker.
2. Defendant’s Motion for Protective Order (Doc. 84)
In general, a party may take the deposition of any person, including a party, at any time after
the Rule 26(d) discovery conference and before the cut-off date for discovery established by the
court. See Fed.R.Civ.P. 30(a). Under Rule 30, a party seeking an oral deposition must give a
reasonable written notice of deposition identifying time, place and method of recording of the
deposition. Fed.R.Civ.P. 30(b). The Rule 16 Scheduling Order in this case states in pertinent part
that “[d]epositions must be taken by notice of the opposing parties as specified in the Federal Rules
of Civil Procedure.” (Doc. 77 at ¶ 2.)
Walker attempted to schedule a deposition of Defendant Barnett, but he failed to comply
with the notice provisions in Rule 30 of the Federal Rules of Civil Procedure. (See Doc. 85.)
Counsel for Defendant communicated with Walker to find a date that everyone was available for
Barnett’s deposition, and the parties settled on June 23, 2020. (Doc. 85, Ex. F, G.) By email dated
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June 17, 2020, Defendant’s lawyer reminded Walker that he needed to provide a Notice of
Deposition:
Mr. Walker: I received your email inquiring about Secretary Barnett
traveling to Rapid City on the 23rd. Given that we are three business days away from
that date, and have still not received a notice of deposition, arrangements for an out
of town deposition and the time commitment for travel, in addition to the deposition
itself, are not entirely reasonable. As I stated in my prior email, we do not waive the
notice requirement and will require one be served before the deposition. At this
point, our preference would be a deposition in Pierre or via remote means such as
Zoom, Microsoft Teams, or telephone, while observing the requirements for
depositions from the federal rules. Have you made arrangements for a court reporter
who can swear in Secretary Barnett and record the deposition? If you need to locate
a reporter, I could provide some contacts.
(Doc. 85, Ex. I.). On June 22, 2020, Defendant filed a Motion for Protective Order asking the Court
to forbid Walker from conducting a deposition because he had yet to give proper notice. (Doc. 84.)
Walker has not opposed Defendant’s Motion for Protective Order. In fact, he indicated to Defendant
that he can’t take the deposition until after the Court rules on his pending motions. (Doc. 87-1.)
Because Walker has failed to provide proper notice of Barnett’s deposition, Defendant’s motion for
protective order is granted. Depositions must be taken by notice as specified in the Federal Rules
of Civil Procedure. Accordingly,

IT IS ORDERED:
1. That Defendant’s motion for protective order (Doc. 84) is granted.
2. That Walker’s motion for copy of docket (Doc. 81) is granted, and the Clerk of
Court is directed to send a copy of the docket sheet in this case to Walker.
3. That Walker’s motion for clarification (Doc. 78), motion for oral argument (Doc.
79), and motion to modify scheduling order (Doc. 80), are denied.

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Dated this 1st day of July, 2020.
BY THE COURT:

______________________________
Lawrence L. Piersol
United States District Judge
ATTEST:
MATTHEW W. THELEN, CLERK

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