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finding that, without evidence that a newly named defendant had been informed of the suit by a fellow detective, the two detectives' interests were not sufficiently intertwined to assume the newly named defendant had received notice of the action
Summary of this case from Velez v. FuentesOpinion
Civil No. 05-2261(JEI), Doc. No. 65, 66, 67, 68, 69.
January 31, 2006
ORDER
This matter having been brought before this court upon the motion of Samuel J. Lassoff, Esquire, plaintiff pro se, to amend the complaint, pursuant to Fed.R.Civ.P. 15, and several motions to compel brought by the plaintiff, pursuant to Fed.R.Civ.P. 37; and the court having considered the submissions of the parties; and
THE COURT NOTING that in his motion to amend, the plaintiff seeks to amend the caption to add a party, State Police Detective Kenneth I. Franco ("Franco"). The plaintiff alleges that on November 2, 2002, while playing poker at Bally's Casino, he was assaulted by Brian Taylor ("Taylor"), another patron at the casino. (Amended Complaint, ¶¶ 15-17). Bally's employees and security were called to the poker table. (Id.) Allegedly, the employees and security did not remove Taylor from the casino floor. (Id. at ¶ 20). The plaintiff then asserts that he was detained in a holding cell at the casino and harassed and ridiculed by various casino enforcement officers and employees, without the assistance of legal counsel. (Id. at ¶ 27-29). The plaintiff alleges that he was falsely arrested and imprisoned, and that the defendants acted knowingly and intentionally in assaulting the plaintiff. (Id. at ¶ 33-34). Specifically, the plaintiff alleges that Detective Nazzareno Nepi ("Nepi") used excessive force against the plaintiff while the plaintiff was in custody at the casino. (Amended Complaint, ¶¶ 26-36). Franco's interaction is limited to a brief conversation with the plaintiff while the plaintiff was in custody. Franco took a picture of the photograph and he signed, as a witness, the summons issued to the plaintiff by Nepi. (Defendant's Brief in Opposition, pgs. 5-6). Franco was not present during the altercation in the casino or at the time the plaintiff initially was taken into custody. The plaintiff asserts that as a result of the defendants' actions, he suffers from physical pain, emotional distress, and mental anguish. (Id. at ¶ 35).
The defendants assert that the case derives from the plaintiff's own "abhorrent" conduct "which occurred after he became inebriated while gambling at Bally's and attacked another person." (Cert. in Support of Bally's Opp. (Doc. No. 74), ¶ 5;see also Defendants' motions to dismiss (Doc. Nos. 33, 35, 42)).
The plaintiff brought suit under 28 U.S.C. § 1331 and § 1334 on September 14, 2004, against the State of New Jersey, New Jersey State Police Division of Gaming Enforcement, Nepi, Bally's Park Place, Inc., Caesars Entertainment, Inc., and casino employees, as well as the City of Atlantic City, the Atlantic City Prosecutor's Office, and several city employees. The plaintiff charges the defendants with assault and battery, violations of his First, Fourth, Ninth, and/or Fourteenth Amendments to the United States Constitution, false arrest, failure of the State of New Jersey and the Division of State Police to supervise, liability under the doctrine of respondeat superior, malicious prosecution, and state law tort claims. (Complaint and Amended Complaint). The plaintiff filed his amended complaint in November, 2004.
On March 18, 2005, the case was transferred to the United States District Court for the District of New Jersey, Camden Vicinage. On July 6, 2005, Defendants Mike Flemming and Eric Demead filed a motion to dismiss. Additionally, Defendants Nepi, the State of New Jersey, and the New Jersey State Police filed a motion to partially dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on July 26, 2005. On July 28, 2005, the State defendants filed an answer. Then, on August 22, 2005 the court granted the plaintiff's motion to amend filed on July 28, 2005. On September 24, 2005 the plaintiff filed the motion to amend, seeking to add Detective Kenneth I. Franco as a defendant; and
THE COURT FURTHER NOTING that the Federal Rules of Civil Procedure encourage and provide for a liberal policy for amending pleadings. Under Fed.R.Civ.P. 15(a), leave to amend pleadings "shall be freely given when justice so requires." Justofin v. Metro. Life Ins. Co., 372 F3d 517, 525-26 (3d Cir. 2004). The Supreme Court articulated this liberal policy in Foman v. Davis, 371 U.S. 178 (1962), when it stated:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or undeclared reasons — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."Id. at 182. The Third Circuit has elaborated on the proper analysis to apply:
The trial court's discretion under Rule 15, however, must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is "the touchstone for the denial of leave to amend.". . . In the absence of substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment.Heyl Patterson International, Inc. v. F.D. Rich Housing of the Virgin Islands, 663 F.2d 419, 425 (3d Cir. 1981), citingCornell Co., Inc. v. Occupational Safety and Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978); see also. Grayson v. Mayview State Hospital, 293 F.3d 102, 108 (3d Cir. 2002);Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995).
It is well established that the futility of amendment is one of the factors that may be considered in denying a motion to amend.Foman, 371 U.S. at 182. See also Federal Deposit Insurance Corp. v. Bathgate, 27 F.3d 850, 874 (3d Cir. 1994); Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir. 1989). However, given the liberal standard applied to the amendment of pleadings, courts place a heavy burden on opponents who wish to declare a proposed amendment futile. The Third Circuit has stated that "the trial court may properly deny leave to amend where the amendment would not withstand a motion to dismiss." Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937 (1983). Thus, if the proposed amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the court may deny leave to amend. If a proposed amendment is not clearly futile, then denial of leave to amend is improper." 6 CHARLES A. WRIGHT, ARTHUR R. MILLER AND MARY KAY KANE, FEDERALPRACTICE AND PROCEDURE § 1487 at 637-642 (2d ed. 1990) (footnote omitted).
To demonstrate that a claim is "legally insufficient on its face," and that it could not withstand a motion to dismiss, the opposing party must be able to demonstrate that "it appears beyond doubt that the [party] can prove no set of facts in support of [the] claim which would entitle [the party] to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); and
THE COURT FURTHER NOTING that in his proposed amended complaint, the plaintiff alleges retaliation in violation of 42 U.S.C. § 1983, which does not contain a statute of limitations. The Supreme Court has held, however, that actions filed under § 1983 are governed by the limitations period applicable to the state's personal injury claims. Rolax v. Whitman, 175 F.Supp.2d 720, 725 (2001), quoting Wilson v. Garcia, 471 U.S. 261, 276-78 (1985); see also 287 Corp. Cntr. Assoc. v. Township of Bridgewater, 101 F.3d 320, 322-23 (3d Cir. 1996). In New Jersey, the statute of limitations for personal injury claims is two years. N.J.S.A. § 2A:14-2. The alleged incident, out of which all of the plaintiff's claims arise, occurred on November 2, 2002. Therefore, the statute of limitations ran on November 2, 2004. The plaintiff brings this motion to amend the caption almost a year after the statute of limitations has run.
The plaintiff's original complaint and first amended complaint alleges that the incident happened on November 1, 2002 and November 2, 2002. However, other documents provided to the court reference November 2, 2002 as the date of the incident. Therefore, the court has chosen to use November 2, 2002 as the date of the incident.
An amendment may be futile if filed outside of the statute of limitations, unless the amendment relates back to the original date of the filing of the complaint. Fed.R.Civ.P. 15(c) permits relation back "to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.Fed.R.Civ.P. 15(c). Rule 15(c)'s relation back provision "aims to relieve the harsh result of the strict application of the statute of limitations." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
Under New Jersey law, amendment outside of the statute of limitations is permitted
[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be brought in by amendment.R. 4:9-3. New Jersey also permits fictitious naming of unknown defendants, where the plaintiff "add[s] an appropriate description sufficient for identification." R. 4:26-4.; and
New Jersey Rule of Court 4:26-4 provides:
In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained. If, however, defendant acknowledges his or her true name by written appearance or orally in open court, the complaint may be amended without notice and affidavit. No final judgment shall be entered against a person designated by a fictitious name.
THE COURT FURTHER NOTING that the plaintiff did employ the John Doe designation in his original and amended complaints. Under both the federal and state rules, however, certain conditions must be satisfied to name a party under the relation back provision.
Under Rule 15(c), to add a name to a complaint, a plaintiff must satisfy both Rule 15(c)(2) and (c)(3). Garvin v. City of Philadelphia, 354 F.3d 215, 222 (3d Cir. 2003). Therefore, the claim for which the plaintiff is seeking to add a defendant must relate back to the original claim, the party to be added received notice of the suit and would not be prejudiced in being joined, and the party added knew or should have known, but for a mistake, that he or she should have been a party in the action. Id.;Singletary v. Penn. Dep't. of Corrs., 266 F.3d 186, 189 (3d Cir. 2001).
1. Arising Out of the Same Transaction or Occurrence.
The first requirement that the plaintiff's amended complaint must meet is that it arise out of the same occurrence or transaction as the original complaint. The motion to amend the caption fails to state why Franco is being added as a defendant. If it is for the same counts alleged in the original complaint, then this motion arises out of the same occurrence. If not, then the first requirement is not met and the plaintiff's motion will not relate back. Regardless of whether the motion to amend arose out of the same transaction, Rule 15(c)(3) provides that all three requirements must be met and the plaintiff does not meet the remaining requirements.
2. Notice of the Lawsuit.
Rule 15(c) also requires that the party to be added have notice of the suit within 120 days of the filing of the complaint. See Fed.R.Civ.Pro. 15(c) and 4(m); see also Garvin, 354 F.3d at 221 ("The parties to be brought in by amendment must have received notice of the institution of the action within 120 days following the filing of the action, the period provided for service of the complaint by Rule 4(m) of the Federal Rules of Civil Procedure")."Notice does not require actual service of process on the party sought to be added; notice may be deemed to have occurred when a party who has some reason to expect his potential involvement as a defendant hears of the commencement of litigation through some informal means."Singletary, 266 F.3d at 195.
The Third Circuit has recognized two methods in which notice could be deemed to be imputed. The first is the "shared attorney" method, the second is the "identity of interest." Singletary, 266 F.3d at 196-197. The shared attorney method requires that the originally named defendant and the party to be added are represented by the same attorney. The identity of interest method requires that the parties be so closely related in their business activities that the commencement of a lawsuit against one provides notice to the other. Id..
Franco declares that he did not receive notice of the lawsuit until October 2005, (Def.'s Opp., p. 8), and the plaintiff has supplied no information to the contrary. October 2005 is well outside of the 120 day limit required under the federal rules. Furthermore, there is no viable argument that Franco was otherwise put on notice of the suit. Franco was not specifically described in the original complaint, which might have put him on notice of the suit. And, notice cannot be imputed through of the Third Circuit's shared attorney method or identity of interest method because, although the Attorney General defends state employees, such a defense is not automatic and requires the employee to request defense from the Attorney General as a first step. (See Def.'s Opp., p. 10). Therefore, Franco would not have received information about the lawsuit from the Attorney General. Moreover, Franco is an employee of the New Jersey state police; he is not an employee of the casino. Although Nepi could have told Franco that a suit had been brought, Nepi and Franco's interests are not so intertwined that it can be assumed that Nepi would have informed Franco about the lawsuit. And this court has been presented with no information to suggest that Nepi did tell Franco of the lawsuit. Consequently, the court finds that Franco did not have notice of the lawsuit in accordance with Rule 15(c)(3).
3. Does The Amendment Cause Prejudice.
The third requirement of Rule 15(c) is that the party to be added will not be prejudiced by the amendment. In deciding whether prejudice exists, the Third Circuit has noted that if a "newly named defendant received some sort of notice within the relevant time period, the issue becomes whether that notice was sufficient to allay any prejudice the defendant might have suffered by not being named in the original complaint."Singletary, 266 F.3d at 194 n. 3. However, "[i]f the newly named defendant received no notice, then it would appear unlikely that such non-notice was sufficient to allay the prejudice."Id.
As noted above, Franco did not have notice of the suit. Furthermore, the defendants allege that Franco will be substantially prejudiced if this motion to amend is granted. Specifically, they assert that Franco may now be subject to punitive damages and there is no certainty that he will be provided indemnification by the State of New Jersey. In addition, the defendants point out that Franco is not guaranteed representation by the Attorney General's office. (Defendant's Brief in Opposition, pg. 10). The court finds that granting this motion would be substantially prejudicial to Franco because he had no notice of the suit and he will be burdened by the excessive passage of time since the event. See Singletary, 266 F.3d at 194-95.
4. The Party Was Not Excluded By Mistake.
Finally, the plaintiff must show that it was a mistake not to add the party in the original complaint. "Where there is a basis for the plaintiff to assert liability against the party or parties names in a complaint and there is no reason for another party to believe that the plaintiff did anything other than make a deliberate choice between potential defendants, courts have consistently held that the third requirement of Rule 15(c)(3) is not met." Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1183 (3d Cir. 1994). If the plaintiff had been aware of the identity of the newly named party when he filed his original complaint, and simply chose not to sue the party, the amended complaint will not relate back. Garvin, 354 F.3d at 221-22.
The plaintiff had notice of Franco's alleged involvement as early as the date of the incident. Franco's name appeared on the summons issued to the plaintiff on November 2, 2002. (Def.'s Opp., p. 9). Additionally, the plaintiff was able to identify many of the alleged actors in the situation, as indicated by the various defendants named in his original complaint and his amended complaint. It has now been a year since the statute of limitations ran, and he is seeking to add another defendant that he allegedly could not identify when he filed his complaint and amended complaint. The plaintiff's memorandum of law in support of the motion does not address this issue. And, given the appearance of Franco's name on the summons in 2002, this court finds no support for an assertion that the plaintiff excluded Franco's name in the original or first amended complaint by mistake.
The plaintiff's claim is subject to the two year limitation period on personal injury actions, as set forth in N.J.S.A. 2A:14-2. Although the motion to amend may relate back to the fist amended complaint, Franco did not have notice of the suit, the motion to amend is substantially prejudicial to Franco, and the plaintiff has not demonstrated that he excluded Franco in the original or first amended complaint by mistake. Thus, none of the prerequisites to relation back under the federal rule have been met.
5. Relation Back Under New Jersey Law
For similar reasons, the plaintiff cannot rely upon New Jersey law of relation back, applicable through Fed.R.Civ.P. 15(c)(1). "The identification of a defendant by a fictitious name, as authorized by R. 4:26-4, may be used only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint." Claypotch v. Heller, Inc., 360 N.J. Super. 472, 479-80 (App.Div. 2003). "In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and service of the amended complaint." Id. at 480;see also Farrell v. Votator Division of Chemetron Corp., 62 N.J. 111, 122-23 (1973) (due diligence analysis is informed by considerations of "prejudice, reliance, or unjustifiable delay"). As discussed above, the plaintiff had notice of Franco's connection to this case immediately after the incident through the summons issued and delivered to the plaintiff in November 2002. The plaintiff supplies no reason why he did not name Franco in the original complaint. Franco certified that he had no notice of the litigation prior to October 2005, and the plaintiff supplies no information to the contrary. (See Franco Cert., Ex. 3, Defs.' Opp. (Doc. No. 71), ¶¶ 13-15). Franco will be prejudiced by the passage of time since the incident, including the more than one year following the running of the statute of limitations. Consequently, R. 4:26-4 does not support the plaintiff's application to amend the complaint. The plaintiff's motion to amend the caption shall therefore, in accordance with the below order, be DENIED; and
THE COURT FURTHER NOTING that the plaintiff has filed several motions to compel against various groups of defendants. The plaintiff moved to compel discovery (Doc. No. 68) from the casino defendants, Defendants Ceasar's Entertainment, Inc., Bally's Park Place, Inc., Dori Diaz, Mike Flemming, Patrick Smith, Eric Denmead, Bally's Security Director, and Bally's Surveillance Director. The plaintiff also filed a motion to compel discovery (Doc. No. 67 and 69) from the Atlantic City defendants, Atlantic City, Atlantic City Prosecutor's Office, Billie Moore, and Chirstopher Roberson. Finally, the plaintiff moved to compel discovery (Doc. No. 66) from the state defendants, State of New Jersey, New Jersey Division of State Police, and Trooper Nazzareno F. Nepi #4216; and
THE COURT FURTHER NOTING that Fed.R.Civ.P. 37 permits a party to request an order compelling disclosure of discovery requested pursuant to the rules. Fed.R.Civ.P. 37(a). Moreover, "an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(3); and
THE COURT FURTHER NOTING that the court shall review each of the plaintiff's motions in turn.
1. The Casino Defendants (Doc. No. 68)
Defendants Dori M. Diaz, Patrick Smith, and Brian R. Taylor oppose the motion to compel asserting that they have never been served a copy of the complaint. As to Defendants Diaz and Smith, the plaintiff attempted to serve them by forwarding a copy of the summons and complaint to Defendant Bally's. (Pl.'s Mot. Default (Doc. No. 40), Ex. 1). The casino defendants represent that the plaintiff was informed, at the time he attempted to serve summons, that neither Diaz nor Smith worked at Bally's any longer. (See Bally's Opp. to Default (Doc. No. 46), ¶ 46). The plaintiff filed a motion for default judgment against Defendants Diaz and Smith related to this alleged service. (See Doc. Nos. 40 and 43). These motions are currently pending before the Honorable Joseph E. Irenas. It would be premature to order production of discovery prior to actual service on Defendants Diaz and Smith. And, as the issue of proper service is presently before the court, as to Defendants Diaz and Smith, this motion shall be denied.
As to Defendant Taylor, the casino defendants oppose the motion asserting that Defendant Taylor has never been served; however, they provide no reference for this position and, unlike Defendants Diaz and Smith, Defendant Taylor is not mentioned in Bally's opposition to the plaintiff's motion for default judgment. Moreover, the plaintiff supplied proof of service upon Defendant Taylor at what appears to be a personal address, not at Bally's. Thus, the reasoning above cannot apply to Defendant Taylor. Nevertheless, there is also a motion for default judgment pending against Defendant Taylor. Such a motion should be decided prior to ruling on any motion to compel. Thus, as to Defendant Taylor, the motion shall be denied.
As to Defendants Flemming and Denmead, the casino defendants oppose the motion noting that Defendants Flemming and Denmead have filed a motion to dismiss in lieu of an answer. That motion is currently pending before Judge Irenas. The motion is fully briefed and the administration of justice would best be served by holding discovery responses until a decision on the motion has been rendered. Thus, as to Defendants Flemming and Denmead, the motion shall be denied.
Finally, as to Defendants Caesars Entertainment, Inc., Bally's Park Place, Inc. d/b/a Bally's Atlantic City and Bally's Park Place, Inc. d/b/a the Wild Wild West Casino at Bally's Park Place (improperly named in the complaint as aforesaid)), these defendants have filed a motion to dismiss in lieu of an answer. That motion is fully briefed and presently pending before Judge Irenas. As above, the court shall deny the motion as to these defendants as well in the interest of the efficient administration of justice. See Fed.R.Civ.P. 1, 15.
2. The Atlantic City Defendants (Doc. Nos. 67, 69)
Defendants City of Atlantic City, Atlantic City Prosecutor's Office, Billie Moore, and Christopher Robertson ("the Atlantic City defendants") oppose the motion asserting that they have provided responses to the interrogatories, albeit out of time. The Atlantic City defendants notified this court by letter dated November 22, 2005, that counsel required an adjournment to respond to discovery due to the recent elections in the city, which led to the substitution of new counsel. The Atlantic City defendants further have now provided responses to the outstanding discovery to the plaintiff. In opposition to the plaintiff's request for monetary sanctions, the Atlantic City defendants assert that the plaintiff did not make sufficient attempt to confer in good faith to resolve the outstanding discovery dispute prior to filing the motion. Former counsel for the Atlantic City defendants forwarded a letter to the plaintiff on October 20, 2005, five days prior to the filing of the instant motion to compel, informing the plaintiff that counsel was not authorized to proceed any further on behalf of the Atlantic City defendants in connection with this case. (See Atlantic City Opp. (Doc. No. 83) at ¶ 4). However, the plaintiff did not contact counsel and instead filed the instant motions.
The court shall deny the motion as the defendants have filed responses to the discovery, the defendants timely contacted the plaintiff as well as this court to inform him of the delay because of the recent elections, new counsel was retained and responded promptly to both the motion and the discovery requests.
3. The State Defendants (Doc. No. 66)
The state defendants (State of New Jersey, New Jersey Division of State Police, and DSG Nazzareno F. Nepi) oppose the motion on several grounds. First, as to Defendants State of New Jersey and New Jersey Division of State Police, the defendants assert that, prior to the time to respond to the discovery had run, they forwarded a letter to the plaintiff indicating that they intended to file a motion to dismiss the complaint based, inter alia, upon immunity under the Eleventh Amendment to the United States Constitution. They asked that the plaintiff extend the time to respond to the discovery to 30 days following decision of the court on the 11th Amendment motion. Counsel refused to consent. The defendants thus request that this court extend the time.
The state defendants state throughout their opposition that the plaintiff's own responses to the defendants' requests for discovery are delinquent. However, opposing a motion to compel discovery by referencing the parallel conduct of an adversary holds no weight under the federal rules. If the defendants have issues that they wish to raise with this court related to the plaintiff's conduct in discovery, they must do so in accordance with the rules following a good faith attempt to resolve the dispute without the assistance of the court.
Courts are sensitive to pretrial matters in cases in which qualified immunity has been asserted. The Supreme Court directed that "such pretrial matters as discovery are to be avoided if possible, as '[i]nquiries of this kind can be peculiarly disruptive of effective government.'" Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)); see also Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). The dispositive motion is presently pending and fully briefed. No prejudice will inure to the plaintiff should the discovery be delayed as to these defendants, particularly in light of the many dispositive motions presently before this court by numerous defendants. Thus, the court shall extend time to respond to the plaintiff's discovery requests to thirty days following disposition of the motion to dismiss (Doc. No. 35).
The plaintiff's motion further addresses the interrogatories forwarded to Defendant Nepi. Defendant Nepi responded to the discovery on September 6, 2005, prior to the filing of the motion. Thus, the plaintiff's motion appears to be an objection to the content of that answer. However, the plaintiff's motion does not address the discovery propounded nor any apparent deficiencies. The defendants represent that they have completed the discovery fully and, upon review of the requests and answers and with no further comment from the plaintiff, the court finds the responses sufficient.
Similarly, the plaintiff objects to the document production. A review of the plaintiff's motion does not illuminate the basis for the plaintiff's objection. The defendants represent that they supplied all responsive and non-objectionable discovery. Again, without further comment from the plaintiff, the court finds the discovery responses sufficient. Moreover, the State Defendants have specifically declined to consent to service by electronic mail, as is permitted under the rules. The plaintiff must supply the requests in accordance with the rules of this court.
Finally, as to depositions, the court shall not require the state, in accordance with Crawford, supra, to produce witnesses until after the court has ruled on the pending motion to dismiss filed by the State Defendants; and for good cause shown;
IT IS on this 31st day of January 2006 hereby
ORDERED that the plaintiff's motion to amend, pursuant to Fed.R.Civ.P. 15(c), shall be denied ; and
IT IS FURTHER ORDERED that the plaintiff's motions to compel discovery shall be denied, pursuant to Fed.R.Civ.P. 37, 16; and
IT IS FURTHER ORDERED that the defendants shall discovery shall be conducted in accordance with the above directives.