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PYKE v. CUOMO

May 12, 2004.

JOSEPH H. PYKE, MAY P. COLE, CHARLES BENEDICT, PATRICIA A. BENEDICT JULIUS M. COOK, BEVERLY J. PYKE, EDWARD SMOKE, SELENA M. SMOKE, and MARGARET PYKE THOMPSON, all on behalf of themselves and all other persons similarly situated, Plaintiffs
v.
MARIO CUOMO, THOMAS A CONSTANTINE, ROBERT B. LEU, and RONALD R. BROOKS, Defendants



The opinion of the court was delivered by: DAVID HOMER, Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Presently pending are (1) the request of plaintiffs for an order compelling the continuation of the depositions of two witnesses and the production of certain documents, and for leave to serve an expert witness report, and (2) the request of defendants for an order compelling plaintiffs to serve supplemental responses to fifteen contention interrogatories. These requests were made and opposed in letters with attachments from plaintiffs' counsel dated April 29, 2004 and from defendants' counsel dated May 4, 2004. Oral argument was heard on May 6, 2004. For the reasons which follow, the respective requests of the parties are denied in all respects.

  I. Background

  Plaintiffs commenced this action in 1992 alleging that in 1989 and 1990 on the Mohawk Indian reservation known as the Akwesasne or St. Regis Reservation, defendants, all present or former New York State government officials, deprived plaintiffs of equal protection of the laws in violation of 42 U.S.C. § 1983 and various state law provisions. Specifically, plaintiffs allege that defendants failed to provide police protection on the reservation because they are Native Americans. More complete statements of the allegations underlying the complaint are set forth in various opinions previously rendered in this case and familiarity with those opinions is assumed. See, e.g., Pyke v. Cuono, 258 F.3d 107 (2d Cir. 2001); Pyke v. Cuomo, 209 F.R.D. 33 (N.D.N.Y. 2002) (McCurn, J.).

  Although this case has been pending for over twelve years, the facts relevant to the pending discovery issues began in June 2001 when the Second Circuit Court of Appeals vacated the district court's grant of summary judgment to defendants and remanded for discovery and further proceedings. Pyke, 258 F.3d 107. Following a conference with counsel for all parties, a Uniform Pretrial Scheduling Order (UPSO) was entered on October 16, 2001 establishing a schedule for progression of the case pursuant to Fed.R.Civ.P. 16. Docket No. 110. Inter alia, that order established October 11, 2002 as the deadline for completion of discovery and March 25, 2003 as the deadline for filing dispositive motions. Id

  On August 8, 2002, plaintiffs' motion for class certification was granted with the class certification limited to issues of liability. Docket No. 123; Pyke, 209 F.R.D. 33. A conference with counsel for all parties was then held at which the scheduling order was amended to extend the time for completion of discovery as to liability to August 1, 2003 and dispositive motions as to liability to March 25, 2004. Docket No. 125. In a letter dated June 25, 2003, plaintiffs requested a second extension of these deadlines by six months. This request was granted, extending the discovery deadline for liability to January 31, 2004.*fn1 The order granting this extension stated, however, "[n]o further extensions." Docket No. 131.

  No further extensions were sought. However, by mutual agreement, the depositions of certain witnesses, including that of defendant Thomas A. Constantine ("Constantine") on February 12, 2004, were held after the January 31, 2004 deadline. By letter-brief dated April 29, 2004, plaintiffs requested an order (1) permitting them to continue the deposition of Constantine and defendant Robert B. Leu ("Leu") for an additional day each beyond the seven hours allowed by Fed.R.Civ.P. 30(d)(2); (2) compelling the production of certain documents withheld by defendants under claims that they were protected from disclosure by the attorney-client privilege; and (3) granting plaintiffs leave to serve an expert witness report on the issue of liability. Defendants opposed the request and, in the alternative, requested that if plaintiffs' requests were granted, defendants be granted an order compelling plaintiffs to supplement their responses to defendants' contention interrogatories.

  II. Discussion

  As a threshold matter, defendants contend that plaintiffs' request is untimely. Plaintiffs contend that if untimely, their request should nevertheless be granted because they have demonstrated good cause to extend the applicable deadlines.

  A. Depositions and Document Production

  1. Timeliness

  The final deadline for completion of discovery was January 31, 2004. Docket No. 131. Under N.D.N.Y.L.R. 7.1(d)(8), "[a]ny motion to compel discovery authorized by these Rules shall be filed no later than TEN . . . DAYS after the discovery cut-off date" (emphasis in original);*fn2 see also N.D.N.Y.L.R. 16.2 ("Motions to compel discovery shall be filed and served no later than ten (10) days after the discovery cut-off."). Thus, excluding Saturdays and Sundays, the time for the parties to move to compel discovery expired on February 13, 2004. Plaintiffs' request here was made and received on April 29, 2004. Plaintiffs' request as to the depositions and document production was thus untimely by seventy-six days.

  2. Cause

  Plaintiffs contend that although their request was over two months late, good cause exists to extend the applicable deadlines and to consider their requests. The UPSO which plaintiffs seek to modify was entered pursuant to Rule 16(b). That rule provides that "[a] schedule shall not be modified except upon a showing of good cause. . . ." See also N.D.N.Y.L.R. 16.1(f) ("Deadlines. . . shall be strictly enforced and shall not be modified by the Court, even upon stipulation of the parties, except upon a showing of good cause."); UPSO at ¶ 1 (same); Carnrite v. ...


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