United States District Court, D. Colorado
SAMUEL O.P. YEISER, Plaintiff,
v.
DG RETAIL, LLC, Defendant.
ORDER
Scott
T. Varholak United States Magistrate Judge
Magistrate
Judge Scott T. Varholak This matter comes before the Court on
Plaintiff's Motion to Amend and Reply to Defendant's
Request to Amend Scheduling Order (the
“Motion”)[1] [#175], which has been referred to this
Court [#176]. Through the Motion, Plaintiff requests: (1) a
stay of this matter; (2) the issuance of interrogatories; (3)
deposition testimony; (4) a status report; and (5) the
appointment of advisory counsel. [#175] This Court has
carefully considered the Motion and related briefing, the
entire case file, and the applicable case law, and has
determined that oral argument would not materially assist in
the disposition of the instant motion. For the following
reasons, the Motion is GRANTED IN PART and DENIED IN
PART.
I.
Request for Stay
Plaintiff's
Motion requests a stay of these proceedings for an
unspecified duration of time. [#175 at 1-2] Although the
Federal Rules of Civil Procedure do not explicitly provide
for a stay of proceedings, “the Court has construed
Fed.R.Civ.P. 26(c) to permit a stay of discovery for good
cause, to protect a party from undue burden or
expense.” Bitco Gen. Ins. Corp. v. Genex Constr.
LLC, No. 16-CV-1084-WJM-NYW, 2016 WL 8608452, at *1 (D.
Colo. Sept. 13, 2016) (quotation omitted). Stays, however,
“are generally disfavored in this district.”
Id. “The party who seeks a stay of discovery
has the burden of demonstrating good cause” and
generally must provide “a particular and specific
demonstration of fact in support of the request for a
stay.” Id. (quotation omitted).
Here,
Plaintiff offers several rationales for the requested stay,
but each is presented in a conclusory fashion and none
provides good cause for the requested stay. First, Plaintiff
contends that a stay is justified, because he has filed a
direct appeal of the state court criminal conviction that
resulted from the incident at issue in this lawsuit.
Plaintiff states only that the appeal “will greatly
effect the outcome of this Civil Action, ” without
offering any explanation of how this civil lawsuit alleging
racial discrimination in violation of 42 U.S.C. §§
1981 and 1982, premises liability, and defamation of
character against a retail store would be affected by the
appeal. [#175 at 1-2] Plaintiff's conclusory statement
that the appeal “will greatly effect the outcome”
of this case is insufficient to sustain his burden to
demonstrate good cause.
Second,
Plaintiff states that, “[i]n this stage of the Civil
Action, the Plaintiff must be give[n] more time to adequately
prepare for the up and coming trial.” [#175 at 2] In
support, Plaintiff contends that, due to his incarceration,
“deposition hearings may take more time to set up than
if he was not in prison” and “it is axiomatic
that the Plaintiff would not have a fair opportunity to
prepare any legal dispositions under the current scheduling
order.” [Id.] As a preliminary matter, the
Court notes that, although Plaintiff contends that the
current schedule does not allow sufficient time for him to
prepare for trial, no trial date has yet been set in this
matter. To the extent Plaintiff seeks an extension of the
discovery deadline, he has failed to provide support for such
an extension. Although Plaintiff contends that the scheduling
of depositions may take more time to set up, he does
not explain what diligent efforts he has undertaken to
schedule such depositions under the current schedule or offer
any timeframe for the requested extension. Plaintiff's
conclusory statements about the need for additional time for
depositions and trial preparation thus are insufficient to
establish good cause for a stay.
Third,
Plaintiff requests a stay to allow him sufficient time
“to seek professional counsel, before proceeding
without proper research into this Civil Action prior to
trial, or pre-trial litigations.” [#175 at 2] Plaintiff
filed this lawsuit over 16 months ago, in February 2018. [#1]
At that time, Plaintiff sought the appointment of pro bono
counsel and certified to the Court that he was unable
“to retain an attorney by other means.” [#5] In
seeking the stay, Plaintiff offers no explanation for why he
has not previously sought to seek professional counsel or, if
he has, why he anticipates a different result to his search
now. The Court thus does not find good cause to enter a stay
based upon Plaintiff's expressed desire to seek
professional counsel.
Accordingly,
Plaintiff's Motion is DENIED to the
extent it seeks a stay.
II.
Interrogatories
Plaintiff
next seeks the production of certain information and
documents from Defendant.[2] [#175 at 2] Pursuant to D.C.COLO.LCivR
5.3(b), “[t]o achieve electronic service, an
unrepresented prisoner who is proceeding in forma pauperis
may file written discovery requests under Fed.R.Civ.P. 31,
33, 34, and 36.”
Accordingly,
Plaintiff's Motion is GRANTED to the
extent it seeks service of Plaintiff's requests for the
production of information from Defendant. Plaintiff's
four requests for information in Paragraph 2 of his Motion
thus are construed as Requests for Production pursuant to
Rule 34 and Interrogatories pursuant to Rule 33 and those
requests shall be deemed served upon Defendant as of the date
of filing of this Order- June 26, 2019.
Plaintiff
is advised that any future requests for discovery pursuant to
Rules 31, 33, 34, and 36 should be drafted as independent
documents-separate from any motion- and filed with the Court
to effect service pursuant to D.C.COLO.LCivR 5.3(b).
III.
Depositions
In
addition, Plaintiff requests “a Deposition Hearing for
witness testimony” from various individuals. [#175 at
3] Plaintiff fails to cite to any authority for his request.
Absent certain circumstances that do not appear to be present
here, “[a] party may, by oral questions, depose any
person, including a party, without leave of court.”
Fed.R.Civ.P. 30(a)(1). ...