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Heyliger v. Krygier

United States District Court, W.D. New York

February 9, 2017

DEREK A. HEYLIGER Plaintiff,
v.
JOYCE KRYGIER et al., Defendants.

          DECISION & ORDER AND AMENDED SCHEDULING ORDER

          MARIAN W. PAYSON United States Magistrate Judge.

         Plaintiff 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.

         Heyliger 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 MOOT.

         Heyliger 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. 37(a)(5)(A)(i)-(iii).

         As an 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 expenditures).

         Finally, 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:

         1. All 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.

         2. All 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 Order.

         3. 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.

         4. If no dispositive motions are filed, defense counsel shall notify the Court in writing on or before the dispositive motion deadline date.

         5. No 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.

         6. In 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.

         IT IS SO ORDERED.

         PRO ...


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