Frank et al v. Walker et al

Filing 151

ORDER signed by Judge Lynn Adelman on 10/8/13 denying 140 Motion to Compel. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RUTHELLE FRANK, et al.,
Plaintiffs,
v.

Case No. 11-CV-01128

GOVERNOR SCOTT WALKER, et al.,
Defendants.

DECISION AND ORDER
Before me is defendants’ motion to compel the deposition of plaintiff Ruthelle Frank.
Plaintiffs object to the deposition on the ground that the deposition should have been taken
prior to the deadline for discovery on August 1, 2012. Since defendants did not file the
present motion until after the close of discovery, I can only grant it if they can show that
their failure to take the deposition was the result of “excusable neglect.” Fed. R. Civ. P.
6(b)(1)(B); see also Brosted v. Unum Life Ins. Co. of Am., 421 F.3d 459, 464 (7th Cir.
2005). Whether a party’s omission was the result of excusable neglect is an equitable
determination that must take account of all relevant circumstances, including “the danger
of prejudice to the [non-moving party], the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.” Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
Defendants state that they did not depose Frank prior to the discovery deadline
because two related state court cases were pending, and they thought there would be
additional time for discovery once those cases were concluded. I do not believe that this

is enough to establish excusable neglect. I did not indicate that I would change the
discovery deadline based on the progress of the state court cases. I also note that Frank
is 86 years old and that defendants did take her deposition in the state court proceedings.
THEREFORE, IT IS ORDERED that defendants’ expedited motion to compel the
deposition of plaintiff Ruthelle Frank (Docket #140) is DENIED.
Dated at Milwaukee, Wisconsin, this 8th day of October, 2013.

s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge

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