Patterson v. City of South Charleston, West Virginia et al
Filing
265
MEMORANDUM OPINION AND ORDER denying plaintiff Wayne Patterson's 257 MOTION to reconsider the court's 11/20/2015 242 Memorandum Opinion and Order denying plaintiff's fifth motion to extend discovery by 90 days. Signed by Judge John T. Copenhaver, Jr. on 12/22/2015. (cc: plaintiff, pro se; counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
WAYNE PATTERSON
Plaintiff,
v.
Civil Action No. 12-01964
MAGISTRATE JULIE YEAGER, individually,
LIEUTENANT R. T. YEAGER, individually
and in his official capacity,
SERGEANT L. S. THOMAS, individually
and in his official capacity, and
OFFICER R. P. MCFARLAND, individually
and in his official capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion, filed by plaintiff Wayne Patterson
on December 7, 2015, to reconsider the court’s November 20 order
denying plaintiff’s fifth motion to extend discovery by ninety days.
I.
Rule 54 of the Federal Rules of Civil Procedure provides,
in relevant part, that an interlocutory, non-dispositive “order or
other form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.”
Fed. R. Civ. P. 54(b).
The power to
grant or deny reconsideration of an interlocutory order is within the
court’s discretion.
Moses H. Cone Mem. Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 12 (1983) (“[E]very order short of a final decree
is subject to reopening at the discretion of the district judge.”).
II.
A.
Plaintiff first complains that the court did not have
before it evidence relating to the November 3 re-deposition of
Lt. Yeager.
See Plaintiff’s Motion to Reconsider, pp. 4-5.
Specifically, plaintiff points to an email he sent to opposing
counsel on November 2, 2015.
Id.
As explained in the court’s November 20 order,
plaintiff, appearing by telephone, first deposed Lt. Yeager on
October 26, 2015.
After only a few minutes of questioning,
plaintiff unilaterally ended the deposition.
On October 28,
plaintiff informed opposing counsel by email that he had
scheduled another deposition of Lt. Yeager for November 3 at
12:00 noon, to be taken at Realtime Reporters in Charleston,
West Virginia.
On October 30, plaintiff moved to compel Lt.
Yeager to appear for the second deposition.
Lt. Yeager
responded to plaintiff’s motion, and simultaneously moved for a
protective order, on November 2.
The court ruled immediately on
the parties’ cross motions, and directed that the second
deposition of Lt. Yeager was to proceed, as noticed, on November
3.
See Order of November 3, 2015.
Yet plaintiff failed to
appear for the deposition, telephonically or otherwise, at the
scheduled time and place.
2
Plaintiff’s inability to explain his failure to depose
Lt. Yeager on November 3 informed the court’s conclusion that
plaintiff had not demonstrated diligence in attempting to comply
with the scheduling order.1
See Order of November 20, 2015, pp.
5-6 (denying plaintiff’s motion to extend the time for discovery
by ninety days).
Plaintiff now asserts that the court did not
have before it an email sent by plaintiff to opposing counsel on
November 2.
Plaintiff’s Motion to Reconsider, pp. 3-4.
This is
the only “new evidence,” as plaintiff calls it, that he offers
in support of his motion to reconsider.
The email in question
reads as follows:
Mr. Hedges and Mr. Ruggier,
I am in receipt of Magistrate Yeager’s pending motion
for protective order.
My motions to compel and for
sanctions are pending as well. The court has not heard
or ruled on any of these pending motions.
Therefore I am postponing the November 3, 2015
deposition of Magistrate Yeager until such time a
revised notice is served upon all parties, or until the
court rules on the parties’ pending motions.
Contact me with any questions you may have. Thank you.
Wayne Patterson
Plaintiff’s Motion to Reconsider, Ex. 3.
1 The court also found no plausible explanation for plaintiff’s
failure to depose Lt. Yeager on November 12 or diligently attempt
to schedule depositions of Sgt. Thomas and Officer McFarland. See
Order of November 20, 2015, pp. 5-9.
3
In the body of the pending motion, plaintiff
selectively quotes the November 2 email in a way that suggests
it refers to the deposition of Lt. Yeager.
See Motion, p. 1.
(“I am postponing the November 3, 2015 deposition . . . court
has not heard or ruled on any of these pending motions”)
(alteration in original).
It is apparent, however, that the
email relates to the proposed second deposition of Magistrate
Yeager, which plaintiff scheduled to take place at Realtime
Reporters on November 4 at 12:00 noon.2
Plaintiff has offered no
other explanation for his failure to conduct the scheduled
deposition of Lt. Yeager on November 3.
Consequently, there is
no new evidence that bears upon either the court’s November 3
order directing the re-deposition of Lt. Yeager to proceed or
the court’s November 20 order denying plaintiff’s motion to
extend the time for discovery.
B.
Plaintiff also complains that he was not given
adequate time to reply to the defendants’ responses to his
motion to extend the time for discovery.
Reconsider, pp. 3-4.
Plaintiff’s Motion to
He asserts that a manifest injustice will
2 In its order of November 4, 2015, the court denied plaintiff’s
motion to compel Magistrate Yeager to appear for the scheduled redeposition, and simultaneously granted Magistrate Yeager’s motion
for a protective order. See Order of November 4, 2015.
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result if the court does not reconsider its November 20 ruling
in light of the material attached to his motion, and originally
offered in his reply filed on November 30.
See id., Exs. 1-14;
see also Plaintiff’s Reply to Defendants’ Responses in
Opposition to Motion to Extend Time for Discovery, Exs. 1-10.
According to the court’s revised scheduling order of
September 4, 2015, when the court, acting at plaintiff’s
request, extended the discovery deadline for forty-five days,
discovery was scheduled to close on November 13, 2015.
Plaintiff filed his fifth motion to extend the time for
discovery on November 12, and the defendants responded on
November 13 and 16, respectively.
In view of the fact that
discovery had already closed by the time the defendants had
responded, and given that the parties were scheduled to file
motions for summary judgment by December 3, the court considered
plaintiff’s motion on an expedited basis, and entered an order
on November 20, 2015, denying plaintiff’s motion.
Plaintiff’s
reply, as noted, was filed on November 30.
Nothing plaintiff has filed in support of the pending
motion to reconsider would have had any bearing of significance
on the court’s order denying his request to extend the discovery
period.
As discussed above, plaintiff’s failure to depose Lt.
Yeager on November 3 remains unexplained, as does his failure to
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depose Lt. Yeager on November 12 or to diligently arrange for
the depositions of the other police defendants despite
apparently ample opportunity to do so.
Consequently, it is
ORDERED that plaintiff’s motion to reconsider 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: December 22, 2015
John T. Copenhaver, Jr.
United States District Judge
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