The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion to compel and for extension of the scheduling Order (Docket No. 61*fn1 , see Docket No. 50 (scheduling Order)). The Order setting forth the briefing schedule for this motion held the scheduling Order deadlines in abeyance pending resolution of this motion. Responses to this motion were due by February 28, 2008, any reply by March 6, 2008, and the motion was deemed submitted (without oral argument) on March 6, 2008. (Docket No. 62.) Also pending is defendants' motion to dismiss the Second Amended Complaint (Docket No. 52).
This is a civil rights action. According to plaintiff's Second Amended Complaint (Docket No. 47), plaintiff alleges claims against the Village of Fredonia, its police department, police chief Bradley Meyers, John Doe officers of the village police force, and Chautauqua County and its officers*fn2 (id. ¶¶ 6-13). Plaintiff claims that she was falsely arrested on February 4, 2004, that she suffered trespass and excessive force during her arrest (id. ¶ 15), and that she was arrested and Village defendants again trespassed on her property on February 9, 2004 (id. ¶ 16). She alleges that she was falsely prosecuted by Chautauqua County defendants (id. ¶ 17). She alleges claims for false arrest, excessive force, and false imprisonment from the February 4, 2004, arrest (id. ¶¶ 18-23, 24-29, 30-34). In particular, she claims that she was forcibly removed from her home and not advised of the charge against her (id. ¶¶ 19-20). Then, plaintiff was questioned about her live-in boyfriend (Gary Ortolano, see Docket No. 64, Pl. Atty. Reply Aff. ¶ 8) but not pertaining to any criminal investigation but subjected to humiliating questions about her private life (Docket No. 47, 2d Am. Compl. ¶¶ 21, 22). Plaintiff's claim regarding excessive force stems from the police refusal to allow her to place a neck brace on prior to her arrest (since she suffered from a previous automobile accident) and the substantial physical force applied to her in the arrest (id. ¶¶ 26, 25, 27-28).
According to the Village defendants, plaintiff's mother and brother called the Fredonia police on February 4, 2004, and asked that they conduct a "well-being" visit of plaintiff (see Docket No. 63, Village Defs. Atty. Aff. ¶ 8).
As for the February 9, 2004, arrest, plaintiff claims false arrest and false imprisonment, (Docket No. 47, 2d Am. Compl. ¶¶ 35-40, 41-45*fn3 ). Against the Village defendants, plaintiff alleges common law trespass, and against all defendants emotional distress (id. ¶¶ 58-64, 65-69). Against the Chautauqua County defendants, plaintiff alleges malicious prosecution and denial of due process (id. ¶¶ 46-52, 53-57).
Plaintiff filed her original Complaint on February 3, 2005 (Docket No. 1), and the case initially was assigned to Judge John Elfvin. The Village defendants answered (Docket No. 14) and Chautauqua County and affiliated county defendants moved to dismiss (Docket No. 15) on ripeness grounds (among other grounds) (see Docket No. 36, Pl. Atty. Aff. in support of motion to amend Compl. ¶ 6), which was granted on May 16, 2005 (Docket Nos. 23, 21). By stipulation plaintiff filed her first Amended Complaint (Docket No. 26) excluding claims against Chautauqua County and its affiliates. The Village defendants answered the first Amended Complaint (Docket No. 28). In the scheduling Order for this case, Judge Elfvin referred this case to the undersigned for settlement purposes (Docket No. 29). Plaintiff later moved to amend this pleading (Docket No. 36) (in part to reassert claims against the Chautauqua County defendants), which was granted on October 2, 2007 (Docket No. 45; see Docket No. 47). In the Order granting leave to amend the Complaint, Judge Elfvin referred pretrial matters to the undersigned (Docket No. 45). Prior to the Village defendants answering the Second Amended Complaint (see Docket No. 51), this case was reassigned to Judge William Skretny (Docket No. 48). The Court then entered an Amended Scheduling Order (on October 30, 2007) which had plaintiff's expert disclosure due by February 1, 2008, concluded discovery by March 28, 2008, set a settlement conference for April 8, 2008, before the undersigned, and had dispositive motions due by April 25, 2008 (Docket No. 50).
The Chautauqua County defendants moved to dismiss the Second Amended Complaint as to them (Docket No. 52).
Plaintiff now moves for extension of time to complete discovery, including making her expert disclosure, as well as to compel the Village defendants to answer her Interrogatories or submit to depositions (Docket No. 61, Pl. Atty. Aff. ¶ 3, Wherefore cl., Ex. B (Interrogatories and Demand for Documents upon Meyers or policy maker for Village of Fredonia). As follow up to the deposition of Fredonia police sergeant Paul Luce and defendant chief Meyers on April 6, 2006, plaintiff sought production of several categories of documents (Docket No. 61, ¶ 4, Ex. A). Plaintiff's counsel terms Luce to be a "defendant" (id. ¶ 4), although not stating whether he was one of the John Doe village police officer defendants. Plaintiff, in October 2006, served Interrogatories with document demands upon Meyers and the Village for response either by Meyers or by the policy maker for the Village (id. ¶ 5, Ex. B). Plaintiff wrote in November 2006 and December 2007 requesting responses to these demands (id. ¶¶ 6-7, Exs. C, D). Plaintiff then called defense counsel's office, on or about January 30, 2008, noting that a motion to compel is being prepared unless these requests were responded to and, to date, no production was made by the Village's defense counsel (id. ¶ 8). Plaintiff submitted her Interrogatories in lieu of deposing Meyers a second time as the policy maker (see id. ¶ 25, Ex. H).
Plaintiff seeks an extension of time to complete discovery. She notes that the Chautauqua County defendants have not participated in discovery and only recently have been returned to this case (Docket No. 61, Pl. Atty. Aff. ¶ 18). Plaintiff is uncertain which expert witnesses will be necessary, given the lack of discovery from the Chautauqua County defendants (id. ¶ 19). Plaintiff cannot submit expert opinions absent answers to her Interrogatories by Meyers and village officials (id. ¶ 16) and whatever expert disclosure that has been made (primarily to the Village defendants) needs to be supplemented (id. ¶¶ 18, 20). Plaintiff accuses the Village defendants of delaying the earlier stages of this case (id. ¶¶ 21-23).
The motion to compel is addressed to the Village defendants and they responded (Docket No. 63). They raised various areas where they seek Court input on how they should respond to plaintiff's demands, in particular requesting to submit some items for in camera review to determine whether they should be produced.