Mark-Anthony Tynes v. Nationwide Mutual Insurance Company

Filing 17

ORDER DENYING 13 Motion to Compel, IT IS FURTHER ORDERED that Plaintiff respond to Defendants Motion for Summary Judgment [#12] on or before November 16, 2018. Signed by Judge Elizabeth S. Chestney. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARK-ANTHONY TYNES,
Plaintiff,
vs.
NATIONWIDE MUTUAL INSURANCE
COMPANY,
Defendant.

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CIVIL NO.
SA-18-CV-00242-FB

ORDER
Before the Court in the above-styled cause of action is Plaintiff’s Motion to Compel
Discovery [#13]. This case was referred to the undersigned for all pretrial proceedings on
March 16, 2018 pursuant to Rules CV-72 and 1(c) of Appendix C of the Local Rules of the
United States District Court for the Western District of Texas [#3]. The undersigned has
authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(A). For the
reasons set forth below, the Court will deny Plaintiff’s motion.
Plaintiff Mark-Anthony Tynes, proceeding pro se in this action, asks the Court to
compel Defendant Nationwide Mutual Insurance Company to respond to certain discovery
requests Plaintiff served on Defendant on August 31, 2018. In response, Defendant argues
the requests were untimely and Defendant had no obligation to respond. The undersigned
agrees.
The Scheduling Order governing this case established a deadline for the completion
of all discovery of September 13, 2018 [#7]. This Court’s Local Rules provide that a
responding party “has no obligation to respond and object to written discovery if the response
and objection would not be due until after the discovery deadline.” Loc. R. CV-16(d).

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Plaintiff served his First Set of Interrogatories and First Requests for Production of
Documents on Defendant on August 31, 2018. A responding party has 30 days to respond to
interrogatories and requests for production, see Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A), making
Defendant’s response to the discovery due on or before October 1, 2018.

Because

Defendant’s response was not due until after the close of discovery, under this Court’s Local
Rules, Defendant had no duty to respond, and the Court will deny the motion.
The Court notes that Defendant filed a timely Motion for Summary Judgment in this
case on October 12, 2018 [#12]. It would be particularly prejudicial to Defendant to reopen
discovery after the expiration of the dispositive motions deadline. Although the Court is
mindful of Plaintiff’s status as a pro se litigant, pro se parties are still required to abide by the
procedural rules governing this Court. See Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)
(“The right of self-representation does not exempt a party from compliance with relevant
rules of procedural and substantive law.”).
Finally, the Court instructs Plaintiff that it is his responsibility to respond to the
pending Motion for Summary Judgment. Plaintiff’s response to the motion was due on or
before October 26, 2018, but to date no response has been received. See Loc. R. CV-7(e)
(responses to dispositive motions due within 14 days of service). In light of Plaintiff’s filing
of this motion, however, the Court will grant Plaintiff 14 additional days to file a response.
The Court reminds Plaintiff that a failure to respond to the Motion for Summary Judgment
may be construed as a lack of opposition to the motion, and the Court may grant the motion
as unopposed. See Loc. R. CV-7(e)(2).
The Court further reminds Plaintiff that any response to Defendant’s Motion for
Summary Judgment must be supported by competent summary judgment evidence. In other

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words, to defeat Defendant’s motion, Plaintiff must attach actual evidence to its response—
such as documents exchanged in discovery, sworn affidavits or declarations, or deposition
transcript excerpts—that raise a genuine factual dispute as to any fact material to Plaintiff’s
claims. See Fed. R. Civ. P. 56(c). “Mere conclusory allegations are not competent summary
judgment evidence, and they are therefore insufficient to defeat or support a motion for
summary judgment.” Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992).
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Discovery [#13]
is DENIED.
IT IS FURTHER ORDERED that Plaintiff respond to Defendant’s Motion for
Summary Judgment [#12] on or before November 16, 2018.
SIGNED this 2nd day of November, 2018.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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