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Cottam v. Pelton

United States District Court, M.D. Florida, Ocala Division

November 17, 2017

JOHN COTTAM, Plaintiff,
v.
DOUGLAS PELTON Defendant.

          ORDER

          PHILIP R. LAMMENS United States Magistrate Judge

         This matter is before the Court on three discovery motions filed by Plaintiff, who is proceeding pro se. (Docs. 111, 113, 114).

         This 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).

         I. Motion to Extend Discovery

         In 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).

         On 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 file.
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.

(Doc. 102).

         Despite 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.

         To the 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.

         Likewise, 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. 115-9).

         Under 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.

         II. Motion to Compel

         Plaintiff also seeks to compel the production of responsive documents to subpoenas served on the City of Wildwood and Chief of Police Paul Valentino.[1] 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, 126-3).

         A. Legal Standards

         Federal Rule of Civil Procedure 45 governs production of documents by a nonparty pursuant to a subpoena. Rule ...


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