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Tota v. Franzen

May 1, 2007

ANTHONY SAMUEL TOTA, PLAINTIFF,
v.
FRANZEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Order

Before the Court is plaintiff's motion (Docket No. 28*fn1 ) to reconsider the Scheduling Order (Docket No. 22), which the Court has construed as also a motion to compel production from defendants. Plaintiff seeks the identity of unknown John Doe Jamestown Police Department Special Weapons and Tactics officers and John Doe Chautauqua County Sheriff's Department Special Weapons and Tactics officers (collectively "John Doe SWAT Officers"). As a result, plaintiff states that he cannot amend the Complaint before the deadline set in the Scheduling Order to name these John Does because defense counsel has refused to produce discovery or disclosure to identify the officers (Docket Nos. 27, 28). Plaintiff also claims that he cannot conduct discovery necessary to learn the identity of these officers within the time for motions for leave to amend the Complaint.

The Court issued a briefing schedule which had responses due by March 30, 2007, and any reply by April 13, 2007 (Docket No. 29).

BACKGROUND

This is an excessive force and other civil rights violation action commenced by plaintiff, proceeding pro se, following his arrest which involved SWAT teams from the Jamestown Police Department and the Chautauqua County Sheriff in August 2003.

After a scheduling and status conference on February 8, 2007 (Docket No. 21), the Court issued a Scheduling Order, which gave the parties the customary thirty days from the date of that conference to amend pleadings, or by March 8, 2007 (Docket No. 22). That Order also set deadlines for Alternative Dispute Resolution (id.*fn2 ). Discovery was set to end by July 9, 2007*fn3 , with dispositive motions due by October 9, 2007, and pretrial statements (if no motions were filed) by December 3, 2007 (id.).

Defendants separately moved to opt out of the Court's Alternative Dispute Resolution program (Docket Nos. 23, 25) and those motions were granted by Judge Skretny (Docket No. 26, Order of Mar. 5, 2007).

Plaintiff's Motion

Plaintiff complains that defendants have not identified the John Doe SWAT officers who arrested and seized plaintiff and did not respond to plaintiff's specific requests to identify these officers (as opposed to the officers at the scene or involved in other aspects of the arrest) (Docket No. 28, Pl. Motion). While the Chautauqua County defendants responded, ultimately producing the names of all County SWAT officers at the scene, they did not address plaintiff's particular question of which officers were involved in his arrest. He later complains that Jamestown's belated response was "ambiguous and evasive" like that from Chautauqua County (Docket No. 35, Pl. Reply ¶ 10). Plaintiff seeks additional time in which to move for leave to amend the Complaint and extend generally the Scheduling Order (Docket No. 28, Pl. Motion). He did not state how long he would need to amend the Complaint or give a particular date, but he tried to amend his Complaint with discovery (including possible motions to compel, id. Pl. Aff. ¶ 12), stating that the motion to compel deadline was June 9, 2007. He states that if the June 9, 2007, is too long, the March 8, 2007, deadline for amendments is too short (id.).

The Chautauqua County defendants state that they do not object to extending the deadline for amendment of pleadings or extending dates generally (Docket No. 32, Chautauqua County Defs. Atty. Aff. ¶ 5) and argue that within plaintiff's moving papers is a letter from them identifying all the County personnel involved in this incident (Docket No. 32, Defs. Responding Aff. ¶ 4 (citing Docket No. 28, Ex. G, letter defense counsel to plaintiff, dated Feb. 19, 2007); see Docket No. 28, Pl. Motion ¶¶ 13-15). Defense counsel, however, declined to compile for plaintiff a narrative of what the SWAT officers did during the incident (Docket No. 32, Defs. Responding Aff. ¶ 5).

The Jamestown defendants (collectively hereinafter "Jamestown") also state that they had no objection to reconsidering the Scheduling Order (Docket No. 34, Jamestown Atty. Aff. ¶ 2) but disagree with plaintiff's request for sanctions and his characterization of the disclosure to date, arguing that plaintiff had all documents he required in December 2006 (Id. ¶¶ 2-3). Jamestown argues that it produced a copy of its entire police file to plaintiff in December 2006 and listed all Jamestown Police officers who were members of the Chautauqua County SWAT team (id. ¶ 3). Jamestown contends that plaintiff seeks to have defense counsel do his work for him to state which officers should be named in an Amended Complaint (id.). Jamestown notes that law enforcement officers from various departments, for example the New York State Police, area town and village police departments, were at the scene of plaintiff's ultimate arrest in August 2003 (id. ¶ 4). Jamestown states that plaintiff was given copies of all statements from the incident (id.). Jamestown seeks denial of plaintiff's motion (id., WHEREFORE Cl., at 3).

Plaintiff replies that his motion only sought an extension of the scheduling Order and was not a motion to compel, noting that he did not certify good faith efforts to resolve discovery matters as required by Federal Rule of Civil Procedure 37 (Docket No. 35, Pl. Reply, ¶¶ 1, 2, 3, 6). He also denies that his motion sought sanctions (id. at fifth unnumbered page "Conclusion"). DISCUSSION

I. Standards

Under Federal Rule of Civil Procedure 16, modification of a Scheduling Order is done only upon a showing of good cause. Fed. R. Civ. P. 16(b); see 6A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure ยง 1522.1, at 230-31(Civil 2d ed. 1990). "In the absence of some showing of why an extension is warranted, the scheduling order shall control." Id. at 231. This Court has broad discretion in preserving the integrity of its Scheduling Orders, see Barrett v. ...


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