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Yeiser v. DG Retail, LLC

United States District Court, D. Colorado

June 26, 2019

SAMUEL O.P. YEISER, Plaintiff,
DG RETAIL, LLC, Defendant.


          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). ...

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