Lewandowski v. City of Milwaukee

Filing 72

ORDER signed by Magistrate Judge William E Duffin on 1/22/2019. The plaintiff's motion compel (ECF No. 67 ) is granted to the extent that it seeks an extension of the discovery deadline. Plaintiff's amended motion to compel (ECF No. 71 ) , seeking an order compelling Sgrignuoli to attend a deposition on February 12, 2019 at 10 a.m., is denied. The discovery deadline shall be extended to March 8, 2019, and the dispositive motions deadline shall be extended to April 8, 2019. (cc: all counsel) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHANNON LEWANDOWSKI,
Plaintiff,
v.

Case No. 16-CV-1089

CITY OF MILWAUKEE,
Defendant.
ORDER
On December 17, 2018, plaintiff filed a motion to extend the discovery deadline
“to complete depositions of two defense witnesses.” (ECF No. 64.) Defendant City of
Milwaukee opposed the motion:
Defendant does not assert that it would be prejudiced by another extension,
but rather submits that with no depositions conducted in this matter up to
the time of this filing, the time to move forward, by reasonable measure,
has come and passed, such that another extension would constitute a
reward to Plaintiff not in spite of, but rather because of, her failure to
prosecute her case in a reasonably timely manner.
(ECF No. 65 at 1.) The court granted plaintiff’s motion and extended the discovery
deadline to January 18, 2019, but warned plaintiff that, absent extraordinary
circumstances, it would not grant plaintiff any further extensions in this matter. (ECF No.
66.)

Now before the court is plaintiff’s Rule 7(h) expedited, non-dispositive motion to
compel the deposition of Police Captain John Sgrignuoli (ECF No. 67) filed by plaintiff
on January 14, 2019. Plaintiff states that she “has been seeking the deposition of John
Sgrignuoli specifically since November 19, 2018,” but has been unable to depose him.
(ECF No. 67 at 1.) She “seeks an order compelling the attendance of witness John
Sgrignuoli at a deposition on a date mutually convenient for the parties sometimes in the
next 45 days and allowing for time for reasonable discovery follow-up after his deposition
on issues raised in the deposition.” (Id. at 2.)
In response, defendant argues that “[t]he deposition at issue is not of such value,
and the Plaintiff is not so blameless in not having conducted the deposition sooner, that
it warrants yet another extension of discovery in this matter.” (ECF No. 69 at 3.) However,
defendant admits that it will not be prejudiced by another extension. (Id. at 2.)
After receiving the defendant’s response, plaintiff filed an amended Rule 7(h)
expedited, non-dispositive motion “to compel the deposition of a key defense witness in
this case, Police Captain John Sgrignuoli.” (ECF No. 71 at 1.) It appears that the only
difference between plaintiff’s original motion and her amended motion is that she now
seeks an order compelling Sgrignuoli to attend a deposition on a specific date and time—
February 12, 2019 at 10 a.m. (Id. at 2.)
The court understands defendant’s frustration with plaintiff’s lack of diligence in
prosecuting this case. The defendant has been more than cooperative in not opposing the

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plaintiff’s requests for additional time to conduct discovery. It eventually ran out of
patience. The court cannot identify anything that the defendant has said in opposing the
last two requests for still more time with which it disagrees. Having said that, it appears
that plaintiff has made efforts to procure the deposition of Sgrignuoli. (See ECF No. 68,
¶¶ 4-27.) It also appears that plaintiff has completed one of the two depositions for which
she sought an extension of the discovery deadline to January 18, 2019, to complete. (See
ECF No. 69 at 2.)
Since plaintiff has made efforts in procuring the deposition of Sgrignuoli, and
because defendant will not be prejudiced by another extension, the court will grant
plaintiff’s motion insofar as it seeks an extension of the discovery deadline. However, the
court will deny plaintiff’s request for an order compelling Sgrignuoli to attend the
deposition on a particular date. Sgrignuoli is not a party to this lawsuit. To compel his
attendance at a deposition, a subpoena is required. Fed. R. Civ. P. 30(a)(1). Plaintiff opted
instead to attempt to get the defendant to agree to produce Sgrignuoli for a deposition.
The advantage to Sgrignuoli to such an arrangement is that he has input on picking a date
that is convenient to him. Instead, Sgrignuoli took the position that he would not attend
a deposition until he was served with a subpoena—which he had the right to insist on.
Of course, the downside to taking that position is that he will be stuck with whatever date
is chosen by plaintiff as long as she provides him with reasonable notice of the date. Fed.
R. Civ. P. 30(b)(1). However, plaintiff has not yet served Sgrignuoli with a subpoena.

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Although she contends she has tried and that he is evading service, she has not submitted
any evidence to support that allegation. If once he is served with a subpoena Sgrignuoli
refuses to comply with it, plaintiff may at that time file an appropriate motion.
The deadline to complete all discovery shall be extended to March 8, 2019, and the
dispositive motions deadline shall be extended to April 8, 2019. As previously stated,
absent extraordinary circumstances the court will not grant plaintiff any further
extensions of time. More than further difficulties in scheduling Sgrignouli’s
deposition will be required to establish extraordinary circumstances.
IT IS THEREFORE ORDERED that plaintiff’s motion compel (ECF No. 67) is
granted to the extent that it seeks an extension of the discovery deadline. Plaintiff’s
amended motion to compel (ECF No. 71), seeking an order compelling Sgrignuoli to
attend a deposition on February 12, 2019 at 10 a.m., is denied. The discovery deadline
shall be extended to March 8, 2019, and the dispositive motions deadline shall be
extended to April 8, 2019.
Dated at Milwaukee, Wisconsin this 22nd day of January, 2019.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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