United States District Court, M.D. Florida, Ocala Division
R. LAMMENS United States Magistrate Judge
matter is before the Court on three discovery motions filed
by Plaintiff, who is proceeding pro se. (Docs. 111,
lawsuit arises out of Plaintiff's July 23, 2012 arrest
for fleeing or attempting to elude law enforcement.
Plaintiff's charges were later reduced to reckless
driving, and then, ultimately dismissed. Plaintiff claims
that he was falsely arrested. Plaintiff filed his initial
complaint on June 13, 2016. (Doc. 1). After two amendments,
the sole remaining defendant is Officer Douglas Pelton, who
arrested plaintiff, and the remaining claims, brought
pursuant to 42 U.S.C. § 1983 and state law, are: (a)
Count I - False Arrest; (b) Count II - Malicious Prosecution;
(c) Count IV - Intentional Infliction of Emotional Distress;
and (d) Count V - Negligent Infliction of Severe Emotional
Distress. (Doc. 70).
Motion to Extend Discovery
their joint case management report filed on November 17,
2016, the parties agreed to a discovery deadline of July 28,
2017. (Doc. 66). The Court entered a Case Management and
Scheduling Order setting that date. (Doc. 68). On May 31,
2017, Plaintiff filed a motion to amend the case management
deadlines, including the discovery deadline, “due to
unexpected delays in scheduling delays for depositions of
witnesses, and both parties' counsel are taking vacations
in June.” (Doc. 81). The Court granted Plaintiff's
motion and extended the discovery deadline until September
29, 2017. (Docs. 82 & 83).
September 13, 2017, Plaintiff filed his second motion for
extension of the discovery deadline by an additional 60 days
until November 27, 2017. (Doc. 93). In ruling on the motion,
the Court stated:
In reading Plaintiff's motion to extend discovery (Doc.
93) and the subsequent filings, it is clear that Plaintiff
has not diligently pursued discovery. Indeed, it is unclear
what if any discovery Plaintiff has taken in the past three
months since the Court granted his first request to extend
the deadline. Plaintiff's motion simply outlines
discovery he plans to take or motions that he intends to
Under these circumstances, the requested 60-day extension is
not warranted. The Court will nonetheless, grant Plaintiff
one last extension until October 27,
2017. Plaintiff should carefully consider what
discovery he still needs to complete and coordinate dates and
times with opposing counsel.
the Court's clear language that no further discovery
extensions would be granted, Plaintiff has now filed yet
another motion for an extension of the discovery deadline,
this time until December 29, 2017. Plaintiff claims that the
extension is necessary because direct witnesses have not been
made available to him in a timely manner and the names of the
persons who were and are responsible for handling electronic
information have also been withheld. (Doc. 113). The record
does not support these claims.
contrary, the record suggests that Plaintiff's repeated
requests to extend discovery have been caused by his own
failure to pursue discovery in a timely and diligent manner.
Despite having opportunities to depose Ms. Tanner and Mr.
Torminades sooner, Plaintiff waited until October 24, 2017,
only three days before the discovery cutoff, to do so. The
record shows that Ms.Tanner was made available on August 22,
2017 for deposition, but Plaintiff declined to depose her
that day. (Doc. 94-1). While Mr. Torminades was not available
in July 2017 for a deposition because he was on leave for an
injury, he was available at least by mid-September. Moreover,
defense counsel has filed email communications showing their
repeated efforts to schedule the depositions, including
offers to waive the 14-day written notice requirement and
their agreement to last minute requests to produce documents
at the depositions. (Docs. 115-1, 115-2, 115-3, 115-4, 115-5,
115-6, 115-7, 115-8). In fact, although Plaintiff
unilaterally scheduled the depositions on October 24, 2017
(and defense counsel could have raised various objections),
defense counsel cooperated. Accordingly, Plaintiff's
efforts to blame Defendant for the delay in scheduling these
depositions is unavailing.
Plaintiff's bald assertion that additional issues and
witnesses were revealed in the last minute depositions does
not justify a further extension of the discovery deadline.
Indeed, this is the inherent danger in waiting until the very
end of the discovery period to conduct depositions. Moreover,
while Plaintiff claims that three new witnesses were
identified, Plaintiff has known about at least one of the
witnesses-Lt. Poitevent-since Defendant's deposition on
May 2, 2017, and took no steps to depose him until now. (Doc.
these circumstances-where Plaintiff has failed to diligently
pursue discovery, and a further extension would delay the
case, as trial is set for the February 2018 trial
term-Plaintiff's third motion to extend the discovery
deadline (Doc. 113) is due to be DENIED.
Based on this ruling, Plaintiff's motion for leave to
exceed the number of depositions (Doc. 114) is denied as moot
because discovery has closed in this case.
Motion to Compel
also seeks to compel the production of responsive documents
to subpoenas served on the City of Wildwood and Chief of
Police Paul Valentino. The introduction of the subpoenas
specifically requested: “[a]ll documents related to
cases 2012-CF-000503 (Eluding) and 2013-CT-000059-A (Reckless
Driving) Defendant John Cottam. . .” The subpoenas
included 44 specific requests. At issue here are 16 of the
requests. The City and Valentino contend that they have
either fully responded to each request or raised objections
which should be sustained based upon the overly broad and
unduly burdensome requests which are outside the scope of the
subpoena and subject lawsuit. They further note that a number
of the items requested in the subpoenas were already produced
in response to Plaintiff's pre-suit public records
request on the City of Wildwood. (Docs. 126 at 3, 126-2,
Rule of Civil Procedure 45 governs production of documents by
a nonparty pursuant to a subpoena. Rule ...