United States District Court, W.D. New York
DEREK A. HEYLIGER Plaintiff,
JOYCE KRYGIER et al., Defendants.
DECISION & ORDER AND AMENDED SCHEDULING
W. PAYSON United States Magistrate Judge.
Derek A. Heyliger (“Heyliger”) filed this action
pro se asserting that the defendants, Joyce Krygier,
S. Casaceli, Paul Black, and Beall (collectively,
“defendants”) violated his constitutional rights
during his incarceration at Wende Correctional Facility.
(Docket # 8). Currently pending before the Court is
Heyliger's motion to compel responses to interrogatories
and a document request, to extend the scheduling order, and
for costs. (Docket # 45). For the reasons discussed below,
Heyliger's motion is granted in part and denied in part.
maintains that he propounded four sets of interrogatories and
his second request for production of documents to defendants
on December 28, 2016. (Docket # 45). Heyliger further
maintains that defendants failed to respond to those
discovery requests within the thirty-day deadline set forth
in Rules 33 and 34 of the Federal Rules of Civil Procedure.
(Id.). A review of the docket, however, reveals that
the defendants responded to the discovery requests on
February 2, 2017, the same day on which Heyliger apparently
served the pending motion. (Docket ## 40-44). Accordingly,
his request for an order compelling the responses
(Docket # 45) is DENIED as
also seeks costs in connection with the motion. (Docket #
45). Rule 37 of the Federal Rules of Civil Procedure provides
that if a motion to compel is granted or if the
“requested discovery is provided after the motion was
filed - the court must, after giving an opportunity to be
heard, require the party . . . whose conduct necessitated the
motion . . . to pay the movant's reasonable expenses
incurred in making the motion, including attorney's
fees.” Fed.R.Civ.P. 37(a)(5)(A). Courts are afforded
broad discretion in imposing sanctions. Corporation of
Lloyd's v. Lloyd's U.S., 831 F.2d 33, 36 (2d
Cir. 1987) (citing Nat'l Hockey League v. Metro.
Hockey Club, Inc., 427 U.S. 639, 642 (1976)). A request
for fees may be denied where (1) the movant did not make a
good faith effort to resolve the dispute before filing the
motion; (2) the non-moving party's failure to provide the
discovery response was “substantially justified”;
or (3) the award of fees would be unjust. Fed.R.Civ.P.
initial matter, the Court has not granted Heyliger's
motion to compel, because the responses have already been
provided. In any event, although Heyliger seeks costs in
connection with the motion, he has failed to demonstrate his
costs or that he made a good faith effort to resolve the
dispute with defendants before filing the motion.
Accordingly, that portion of Heyliger's motion seeking
costs (Docket # 45) is
DENIED. See Fed. R. Civ. P.
37(a)(5)(A)(i); Lozano v. Peace, 2005 WL 1629644,
*2-3 (E.D.N.Y. 2005) (declining to grant request for costs
where pro se plaintiff failed to demonstrate any
Heyliger seeks a sixty-day extension of the scheduling order.
(Docket # 45). On February 8, 2017, during a telephone call
with chambers staff, counsel for defendants advised the Court
that they did not object to Heyliger's request for the
extension. Accordingly, that portion of Heyliger's motion
(Docket # 45) that seeks an extension of the
scheduling order is GRANTED. It is hereby
ORDERED, that the current scheduling order (Docket # 28) is
amended as follows:
discovery in this case shall conclude on March 20,
2017. All motions to compel discovery shall be made
returnable on or before April 17, 2017.
dispositive motions shall be filed no later than July
5, 2017. NOTE: If the dispositive
motion is filed against a party who is appearing in this
action pro se, the moving party must include the
advisement set forth in the notice attached to this
Responding papers are due by August 2, 2017.
Reply papers, if any, shall be filed by August 16,
2017. The motion will be taken under advisement
without oral argument.
no dispositive motions are filed, defense counsel shall
notify the Court in writing on or before the dispositive
motion deadline date.
extension of the above cutoff dates will be granted except
upon written joint motion, filed prior to the cutoff date,
showing good cause for the extension.
accordance with Fed.R.Civ.P. 16(f), if a party or party's
attorney fails to obey this scheduling order or fails to
participate in good faith, this Court will enter appropriate
sanctions against that party or that party's attorney,
including dismissal of this action, if appropriate.