Patterson v. City of South Charleston, West Virginia et al
MEMORANDUM OPINION AND ORDER denying plaintiff's 234 FIFTH MOTION to Extend Time for Discovery for a period of 90 days. Signed by Judge John T. Copenhaver, Jr. on 11/20/2015. (cc: counsel of record; any unrepresented parties) (tmh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:12-1964
MAGISTRATE JULIE YEAGER, individually;
LIEUTENANT R.T. YEAGER, individually
and in his official capacity;
SERGEANT L.S. THOMAS, individually
and in his official capacity;
OFFICER R.P. MCFARLAND, individually
and in his official capacity,
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Wayne Patterson’s fifth motion to
extend time for discovery, filed on November 12, 2015.
In the pending motion, plaintiff asks for a ninety day
extension of the November 13, 2015, discovery deadline.
According to plaintiff, who resides in Illinois, he “has worked
diligently to complete discovery.”
However, he claims that due
to “[a]t least two telephonic court conferences,” “various
hearings, filings[,] and delays,” and the actions of counsel for
the defendants, he nevertheless will “need additional time[.]”
The South Charleston Police defendants -- Lieutenant
R.T. Yeager, Sergeant L.S. Thompson, and Officer R.P. McFarland
-- jointly filed a response in opposition on November 13, and
defendant Magistrate Julie Yeager filed a separate response on
The defendants contend that plaintiff has had
ample opportunity to conduct discovery, and cannot show “good
cause” to further extend the discovery deadline.
Inasmuch as discovery was scheduled to close on
November 13, 2015, and dispositive motions are scheduled to be
filed by December 2, 2015, the court considers the pending
motion on an expedited basis.
Federal Rule of Civil Procedure 16 provides, in
relevant part, that “[a] schedul[ing order] may be modified for
good cause and with the judge’s consent.”
Fed. R. Civ. P.
16(b)(4); see also Local R. Civ. P. 16.1(f)(1) (The “[t]ime
limits in the scheduling order for the . . . completion of
discovery . . . may be modified for good cause by order.”).
In the context of Rule 16, the good cause standard
examines “the diligence of the [moving] party . . . rather than
simply that party’s lack of bad faith or the lack of prejudice
to the opposing party.”
Essential Hous. Mgmt., Inc. v. Walker,
166 F.3d 332, 1998 WL 559349, at *4 (4th Cir. 1998) (table); see
also Fed. R. Civ. P. 16(b), Advisory Committee Notes, 1983
Amendments (“The court may modify the schedule on a showing of
good cause if it cannot reasonably be met despite the diligence”
of the movant.).
On the other hand, lack of diligence and
carelessness are “hallmarks of failure to meet the good cause
W. Va. Hous. Dev. Fund v. Ocwen Tech. Xchange, Inc.,
200 F.R.D. 564, 567 (S.D. W. Va. 2001) (Haden, C.J.).
other factors -- like prejudice to the non-movant -- are
potentially relevant, “[i]f [the moving] party was not diligent”
in the first instance, then “the inquiry should end” and the
motion should be denied.
Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609 (9th Cir. 1992); see also Marcum v. Zimmer,
163 F.R.D. 250, 254 (S.D. W. Va. 1995) (Haden, C.J.) (same).
Plaintiff states that he “has worked diligently to
234, ¶ 2.
Plaintiff’s Motion (“Pl.’s Mot.”), ECF No.
In addition to “various hearings, filings[,] and
delays,” plaintiff blames opposing counsel for making the
pending motion necessary.
See id. ¶ 4; see also Plaintiff’s
Affidavit (“Pl.’s Aff.”), ECF No. 235, ¶¶ 19-21.
he accuses opposing counsel of “refus[ing] to agree on an
available deposition date for Lt. Robert Yeager.”
Pl.’s Mot., ¶
If given additional time for discovery, plaintiff indicates
that he “fully intends to conduct depositions of [d]efendants
Lt. Yeager, Sgt. Thomas[,] and Ofc. McFarland.”
Id. ¶ 5.
In resolving the pending motion, the recent history of
this case is instructive.
Plaintiff’s reformed second amended
complaint was docketed on June 10, 2015.
ECF No. 164.
answers were received, the court entered a revised scheduling
order on July 9, 2015.
ECF No. 172.
That order made September
30, 2015, the deadline for completion of discovery.
August 31, 2015, plaintiff moved to extend the discovery period
by ninety days.
ECF Nos. 175 and 176.
The court granted the
motion in part, extending discovery by forty-five days and
modifying the remainder of the schedule accordingly.
In its order, the court advised plaintiff that, “with or
without counsel, [he was to] proceed promptly with the
prosecution of this case.”
See id. at 2.
In their responses to the pending motion, the
defendants assert that between July 9 and August 31 plaintiff
did not attempt to conduct any depositions.
Yeager’s Memorandum in Opposition (“Mag. Yeager Mem.”), ECF No.
237, at p. 7; South Charleston Police Defendants’ Joint
Memorandum in Opposition (“Police Mem.”), ECF No. 236, at 6.
the time between the court’s September 3 order and plaintiff’s
filing of the pending motion, it appears that plaintiff has
deposed Magistrate Yeager, Lieutenant Yeager, and (non-party)
These depositions occurred at Realtime Reporters,
located at 713 Lee Street, in Charleston, West Virginia.
ECF Nos. 210 (Deposition of Jaime T. Adkins), 216 Ex. 1
(Deposition of Magistrate Yeager), and 217 Ex. 1 (Deposition of
Plaintiff, who has remained in Illinois, appeared
telephonically, whereas counsel for the defendants appeared in
person on site.
See ECF Nos. 210, at 2, 216 Ex. 1, at 2, and
217 Ex. 1, at 2 (all showing plaintiff as appearing “via
telephone” and opposing counsel as present on-site).
Plaintiff unilaterally and prematurely ended the
deposition of Lt. Yeager, not long after it began on October 26,
2015, when some of his questions were objected to and not
Plaintiff then noticed, on November 2, the deposition
of Lt. Yeager for 12:00 Noon on November 3 at the Realtime site.
In immediate response to the parties’ opposing positions
respecting the re-deposition, the court entered its order of
November 3, 2015, in the morning of that day, directing Lt.
Yeager, over his objection, to make himself available for the
See ECF No. 221.
But according to
the defendants, plaintiff failed to arrange for the re-
deposition as scheduled.
See Police Mem., at 5 (“Plaintiff
. . . failed to secure a court reporter for the noticed
deposition and the same was not held.”); Mag. Yeager Mem., at 5
n. 2 (“Inexplicably, the [p]laintiff did not call in for this
telephonic deposition that he had noticed for noon on November
And so, the re-deposition did not take place on
See Mag. Yeager Mem., at 4 n. 1; see also Police
Mem. Ex. 2.
In his pending motion, filed November 12, plaintiff
represents to the court that counsel for the defendants refused
to make themselves or Lt. Yeager available for re-deposition
before the close of discovery on November 13.
4; see also Pl.’s Aff., ¶¶ 19-21.
See Pl.’s Mot., ¶
An email exchange between
plaintiff and counsel for the defendants indicates that this is
By email on November 5, plaintiff requested counsel
for the defendants to provide available dates, between November
9 and November 12, for the re-deposition of Lt. Yeager.
Pl.’s Mot. Ex. 1; Police Mem. Ex. 1.
The exchanges between them
Plaintiff presented the email conversation in part, but
neglected to provide several later emails exchanged between
himself and counsel for the defendants. The defendant officers
provide additional, later emails. Compare Pl.’s Mot. Ex. 1 with
Police Mem. Ex. 2.
indicate that eventually Messrs. Ruggier (counsel for the
defendant officers) and Hedges (counsel for Magistrate Yeager)
agreed with plaintiff to fix the date for the re-deposition of
Lt. Yeager as November 12, 2015.
See Police Mem. Ex. 1.
agreement was apparently in vain from the start, as plaintiff
failed again, for reasons unknown, to arrange for or conduct the
Those emails show that there was disagreement only
about the hour when the deposition would begin on November 12.
Plaintiff demanded that the deposition start promptly at noon.
See id. Ex. 1 (Email from plaintiff to Messrs. Ruggier and
Responding by email, Mr. Hedges requested that the
deposition begin an hour later than that, due to a preexisting
scheduling conflict that required his appearance for a state
court hearing at 11:00 a.m.
See id. Ex. 1 (Response email from
Mr. Hedges to plaintiff and Mr. Ruggier).
To accommodate the
slightly later start time, Mr. Hedges offered to “stay as long
as necessary that afternoon and evening to assure that there is
time to finish.”
Plaintiff replied only that he “need[ed]
to be done and packed up before 5:00 o’clock.”2
Id. Ex. 1 (Reply
email from plaintiff to Messrs. Ruggier and Hedges).
Despite all of these efforts on the part of the
defendants, the re-deposition of Lt. Yeager did not occur on
Plaintiff has provided no explanation, beyond the
unsupported assertion that opposing counsel refused to
cooperate, see Pl.’s Mot., ¶ 4, for why he chose to forego the
deposition entirely rather than delay it by one hour.3
absence of any plausible explanation, plaintiff cannot be said
to have acted “diligently” with respect to the deposition of Lt.
Yeager, when he was offered all he requested, save one hour.
2 It is not clear what plaintiff meant by “packed up,” given that
he presumably would have been appearing telephonically at this, as
with every prior, deposition.
3 In her response to the pending motion, Magistrate Yeager states
that “[i]nquiry with Realtime Reporters revealed that the
[p]laintiff never made arrangements for a room or court reporter
for the planned deposition . . . on November 12, 2015,” either at
noon or at some other hour. Mag. Yeager Mem., at 5, 5 n. 2; see
also Police Mem., at 5 (“Plaintiff did not notice the [November
12, 2015] deposition and failed to secure a court reporter[.]”).
While it is not clear from the record that the November 12 redeposition of Lt. Yeager would have taken place at Realtime
Reporters as well, it has been plaintiff’s practice to hold, or
notice, depositions at Realtime Reporters, as he has done so in
every prior instance. See ECF Nos. 200, 201, 202, 210, 219, 220;
see also Police Mem. Ex. 2 (Email from plaintiff to opposing
counsel indicating that the November 3 re-deposition of Lt. Yeager
would occur at Realtime Reporters).
Plaintiff likewise neglected to notice or schedule the
proposed depositions of Officer McFarland or Sergeant Thomas.
See Police Mem. Ex. 2.
The email correspondence attached to the
Police defendants’ response suggests that acceptable dates were
at least offered.
See Police Mem. Ex. 2.
depositions never occurred.
But, once again, the
Though plaintiff now claims that he
“fully intends” to depose Officer McFarland and Sergeant Thomas,
he has provided no explanation for his failure to depose them at
some point in the last five months, or to follow up on the dates
suggested by opposing counsel.
This conduct, too, cannot
seriously be described as diligent.
That plaintiff is proceeding pro se does not change
Although pro se litigants are “generally
‘entitled to a certain liberality with respect to procedural
requirements,’” Bush v. Adams, 2010 WL 1253990, at *3 (E.D. Va.
Mar. 24, 2010) (quoting Mount v. Book-of-the-Month Club, Inc.,
555 F.2d 1108, 1112 (2d Cir. 1977)), the Supreme Court “ha[s]
never suggested that procedural rules in ordinary civil
litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel,” McNeil v. United States, 508
U.S. 106, 113 (1993).
This means that “even pro se litigants
are expected to comply with time requirements and other
procedural rules ‘without which effective judicial
administration would be impossible.’”
Dancy v. University of
N.C., 2009 WL 2424039, at *2 (W.D.N.C. Aug. 3, 2009) (quoting
Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989)).
Pursuant to Local Rule of Civil Procedure 16.1, the
parties are free to seek a private agreement extending the
discovery period, should they so choose.
See L. R. Civ. P.
The deadlines set forth in the court’s
September 4 scheduling order will, however, stand unmodified.
For the foregoing reasons, it is ORDERED that
plaintiff’s fifth motion to extend the time for discovery be,
and it hereby is, denied.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
ENTER: November 20, 2015
John T. Copenhaver, Jr.
United States District Judge
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