United States District Court, S.D. Alabama, Southern Division
CARLOS FERNANDO REIXACH MUREY, as Administrator for the Estate of Carlos Lens Fernandez, a/k/a Carlos Lens, Plaintiff,
THE CITY OF CHICKASAW, et. al., Defendants.
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Motion to
Reopen Discovery for Limited Purpose (Doc. 122) and
Defendants' Response to Plaintiff's Motion to Reopen
Discovery for Limited Purpose (Doc. 129).
to the Rule 16(b) scheduling order, discovery closed on July
15, 2019 (Doc. 55). Magistrate Judge Nelson held a hearing
August 30, 2019 to discuss discovery related issues. (Doc
102). Plaintiff believed, based on information from
Defendants, that Defendant City of Chickasaw recorded radio
and telephone conversations and recorded the dispatch room at
the Chickasaw County Jail. (Doc. 122 at 1). On October 4,
2019, Defendants stated Mobile County EMS maintained those
records and not Chickasaw. (Doc. 119 at 21). On October 8,
2019, Plaintiff moved to reopen discovery to depose witnesses
regarding the recordings. (Doc. 122).
Standard of Review
Rules of Civil Procedure Rule 16(b) states that a
district court must issue a scheduling order which limits the
time to complete discovery. Fed.R.Civ.P. 16(b)(3)(A). This
schedule can be modified only upon a showing of good cause
and with the court's consent. Fed.R.Civ.P. 16(b)(4). Rule
6(b) states when an act must be done within a specified time
period, the court may extend that time period for good cause.
Ashmore v. Sec'y, Dep't of Transp., 503
Fed.Appx. 683, 685-86 (11th Cir. 2013) (citing Fed.R.Civ.P.
6(b)(1)(A)). Good cause is established if the party can show
the schedule could not be met despite the party's
diligence. Oravec v. Sunny isles Luxury Ventures,
L.C., 527 F.3d 1218, 1232 (11th Cir. 2008). In
Ashmore, the Eleventh Circuit used this standard to
determine if a motion to reopen discovery should be granted.
503 Fed.Appx. at 686.
6(b)(1)(B) also states that a court may, for good cause,
extend the time period to file a motion beyond the deadline
if the party failed to act because of excusable neglect. The
following factors are considered to determine if there was
excusable neglect: (1) the danger of prejudice to the
nonmovant; (2) the length of delay and its potential impact
on judicial proceedings; (3) the reason for the delay,
including whether it was within the reasonable control of the
movant; and (4) whether the movant acted in good faith.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395 (1993).
motion to reopen discovery on an issue currently before the
court at the summary judgment stage is evaluated under
Federal Rule of Civil Procedure 56(f). Davken,
Inc. v. City of Daytona Beach Shores, 2006 WL 1232819,
*4 (M.D. Fla. May 5, 2006). This rule provides “the
Court may refuse an application for summary judgment or may
order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery be had if it should
appear from the affidavits of the party opposing the summary
judgment motion that the party cannot present by affidavit
facts essential to justify the party's opposition to the
motion.” Id. (citing Fed.R.Civ.P. 56(f)).
Courts look to whether the moving party was diligent during
the discovery period in deciding whether a to grant a 56(f)
motion. Olds v. Cracker Barrel Old Country Store,
Inc., 2015 WL 13776588, *2 (N.D.Ga. April 2, 2015).
Items for Limited Discovery
Mobile County 911
seeks to reopen discovery for the limited purpose of: (1)
taking the deposition of, and obtaining records from,
non-party Mobile County 911, and (2) obtaining records from
Defendant City of Chickasaw regarding the policies and
procedures for retaining video and audio recordings of police
department business. (Doc. 122 at 1). Defendants do not
object to discovery for the limited purpose of allowing Murey
to subpoena Mobile County 911 for the call transcript
received the morning of May 27, 2016. Upon consideration, it
is ORDERED that discovery is reopened for
the limited purpose of obtaining the Mobile County 911
Defendants object to reopening discovery to allow Murey to
take a deposition of a representative from Mobile County 911.
(Doc. 129 at 1). Upon review, Murey does not specify what he
seeks specifically, only referencing “records from
Mobile County 911” broadly. (Id.). As such, it
is ORDERED that discovery is limited to
Murey issuing a subpoena to Mobile County 911 for the
production of the May 27, 2016 telephone transcript. (Doc.
129 at 1).
City of Chickasaw Policies and Procedures for Record
seeks to reopen discovery as to Defendant City of
Chickasaw's policies and procedures for preserving video
and audio recording because “the City of Chickasaw now
claims it never recorded radio or telephone conversations,
but that Mobile County EMS maintained those records for the
defendant. (Doc. 122 at 3 (referencing Doc. 119 at 21)).
Murey states this information was not ...