United States District Court, N.D. New York
RANDOLPH C. EARLE, Plaintiff,
H&M HENNES & MAURITZ L.P.; OFFICER TODD ROBERTS, Town of Guilderland Police Department; SENIOR INVESTIGATOR THOMAS FUNK, Town of Guilderland Police Department; INVESTIGATOR BRIAN LEACH, Town of Guilderland Police Department; & TOWN OF GUILDERLAND, Defendants.
DECISION & ORDER
J. STEWART United States Magistrate Judge
eve of the close of the already-extended discovery period,
the Court received a Letter-Motion from Plaintiff's
counsel seeking, inter alia, to extend the deadline
to complete certain limited discovery, as well as a
corresponding extension of the deadline for the filing
dispositive motions. Dkt. 48, Pl.'s Lt.-Mot. In addition,
Plaintiff's counsel requests time to obtain a computer
expert and engage in expert disclosure. Id. On
February 8, 2017, the Court held a telephone conference on
the record and made several rulings on certain issues while
reserving on others. As set forth during that conference, and
summarized below, Plaintiff's requests are
granted in part and denied in part.
A. Plaintiff's Complaint
action was commenced on August 27, 2015. Dkt. No. 1, Compl.
An Amended Complaint was then filed as of right on September
30, 2015. Dkt. No. 6, Am. Compl. The Amended Complaint
alleges that on the evening of November 14, 2014, Plaintiff
and an acquaintance - both African American males - went to
the H&M store located inside the Crossgates Mall, located
in Guilderland, New York, where Plaintiff intended to
purchase some clothes. Am. Compl. at ¶¶ 23-25.
Plaintiff selected a “pair of sweatpants and brought
the item to the register in order to pay.” Id.
at ¶ 26. At the register, Plaintiff attempted to use a
payment card associated with his “MasterCard account
ending with 3605.” Id. at ¶ 27. After
“swip[ing]” Plaintiff's card, the H&M
employee told Plaintiff that the card
“registered” as a Visa card ending with
7505. Id. at ¶¶ 28-29.
employee contacted H&M store security, and one or more of
the security officers told Plaintiff to wait inside the
store. Id. at ¶¶ 30-31. H&M employees
also contacted the Guilderland Police Department.
Id. at ¶ 32. Plaintiff indicates that he
voluntarily waited until police arrived to “straighten
out the issue with his payment card.” Id. at
¶¶ 33 & 112. Defendant Guilderland Police
Officer Todd Roberts arrived at the store, arrested
Plaintiff, and walked him through Crossgates Mall in
handcuffs. Id. at ¶¶ 35-38. After an
investigation, lasting about two hours, the officers
allegedly determined that the credit cards that Plaintiff had
on his possession at the station were validly his and not
stolen. Id. at ¶¶ 43-46 & 50-52.
Guilderland Police then released Plaintiff in the Crossgates
Mall parking lot. Id. at ¶ 53. As part of the
follow-up investigation, Officer Roberts returned to H&M
and had Earle's MasterCard swiped, which showed the
correct information. Id. at ¶¶ 55-56.
Amended Complaint alleges the following claims against the
Defendants: (1) illegal detention in violation of the Fourth
Amendment; (2) excessive force in violation of the Fourth and
Fourteenth Amendments; (3) discrimination under 42 U.S.C.
§ 1981; (4) illegal detention under New York State law;
and (5) assault and battery under New York State law.
Id. at ¶¶ 58-163. The Guilderland Police
Defendants have answered the Amended Complaint and asserted
numerous affirmative defenses, including a claim that they
had reasonable suspicion and/or probable cause to detain the
Plaintiff. Dkt. No. 9 at ¶¶ 47-48. The H&M
Defendants also rely on a common law privilege codified as
New York General Business Law § 218. Dkt. No. 12 at
16 Conference was held with the Court on December 2, 2015,
and the on the following date, a Uniform Pretrial Scheduling
Order was issued, setting forth, inter alia, a
discovery deadline of December 27, 2016. Dkt. No. 17. That
Scheduling Order specifically provided that service of
Plaintiff's expert disclosure was to be completed by
September 28, 2016, and Defendants' deadline to serve
their expert disclosures was set for November 14, 2016;
rebuttals were to be served by November 28, 2016.
the Rule 16 Conference a discussion ensued regarding the cash
register readout and related technical issues. The
Plaintiff's initial position in this lawsuit was the that
operative event which led to his arrest and detention, was a
computer glitch. Am. Compl. at ¶ 64 (“The sole
information defendants relied upon to arrest and detain
plaintiff for use of a stolen credit card was that the
H&M computer at the cash register made an error in
printing out two digits on the receipt.”).
Plaintiff's counsel indicated his desire to obtain from
Defendant H&M their complete point of sale billing
software, with all manuals, and the Court expressed its view
that such a wide ranging demand was not proportionally
relevant to the needs of this particular case.
the Rule 16 Conference, the parties, on several occasions,
solicited the Court to intervene and rule on discovery
issues. First, on December 22, 2016, Defendants sought a
Court conference based upon a dispute over access to
Plaintiff's credit card report in order to determine what
cards he was authorized to use and what transactions were
registered. Dkt. No. 27, H&M Lt.-Mot. Following a
telephone conference with the parties, I directed that such
report be provided to me for an in camera review.
Dkt. No 32, Text Order, dated March 15, 2016. Approximately
one month later, Defendant H&M requested Court assistance
in obtaining the credit card history for the credit card
number which the cash register at H&M recorded for Mr.
Earle's transaction. Dkt. No. 34, H&M Lt.-Mot. In
stating his position on Defendant's proposed subpoena,
Plaintiff's counsel renewed requests regarding
“disclosure of the computer software and operation
manual of the software being run at the H&M store in
Crossgates on the date in question.” Dkt. No. 35,
Pl.'s Lt. Based upon the written arguments submitted to
the Court, I authorized and directed that a subpoena be
issued to the Astoria Savings and Loan Association, which
issued the subject Visa card, to produce to the Court for an
in camera review all transaction records for that
card for a limited period of time. Dkt. No. 39, Order dated
Apr. 27, 2016. As to Plaintiff's discovery requests, the
Court reserved until after receipt of the in camera
records; I also noted that the discovery deadline was
currently set for December 27, 2016, I extended the mediation
deadline to August 22, 2016, and I directed the parties to
continue to engage in discovery. Id. Upon receipt
and review of the records, the Court issued an Order allowing
disclosure to the parties. Dkt. No. 43, Text Order, dated
June 7, 2016.
December 12, 2016, just prior to the expiration of the
discovery period, Plaintiff's counsel submitted a
Letter-Motion requesting that discovery be extended until
February 1, 2017. Dkt. No. 46, Pl.'s Lt.-Mot. No request
at that time was made to extend the expert disclosure
deadlines, and indeed those deadlines set forth in the
Scheduling Order had long since passed. There was also no
mention of any enduring discovery dispute lingering with the
parties. In light of the impending expiration of the
deadline, the Court granted an extension of the discovery
deadline to February 1, 2017, and accordingly extended the
dispositive motion filing deadline to March 17, 2017; all
other provisions of the Scheduling Order remained in effect.
Dkt. No. 47, Text Order, dated December 14, 2016.
prior to the expiration of the newly set discovery deadline,
the Court received a Letter-Motion from Plaintiff's
counsel seeking a conference with the Court in order to
resolve more discovery disputes and, once again, to extend
the discovery deadline. Dkt. No. 48, Pl.'s Lt.-Mot.
his Letter-Motion, Plaintiff raises several issues including:
1) the need to depose a non-party witness, namely, the former
employee of H&M who worked the register during the
transaction with Plaintiff; 2) Plaintiff's request for
copies of personnel files for the three non-party witnesses
prior to the scheduled depositions; 3) Plaintiff's desire
to “engage an expert witness concerning operation of
the H&M point-of-sale register at Crossgates and the