United States District Court, E.D. Pennsylvania
February 10, 2004.
JIMI ROSE, Plaintiff,
CITY OF ALLENTOWN, and ZONING HEARING BOARD OF THE CITY OF ALLENTOWN, Defendants.
The opinion of the court was delivered by: LEGROME DAVIS, District Judge
Presently before the Court is Plaintiff's Motion for Extension of
Discovery (Dkt. No. 38). For the reasons that follow, Plaintiff's motion
Factual Background and Procedural History
On June 18, 2002, Plaintiff filed the instant Complaint pro se.
Defendants' Motion to Dismiss the Complaint was denied on November 5,
2002 and a Rule 16 Conference was conducted on November 26, 2000.
Plaintiff was in attendance and participated in a discussion regarding
the scheduling deadlines in this matter. The initial scheduling order,
which was issued on January 9, 2003, instructed that all discovery shall
be completed by May 7, 2003.
On April 28, 2003, nine days prior to the scheduled completion of
discovery, W. Thomas Anthony, Esquire and John J. Keller, Esquire
("Keller") entered appearances on behalf of Plaintiff. (Dkt. Nos. 21,
22). Immediately thereafter, on May 5, Plaintiff filed a Motion to Extend
Discovery. The Court granted Plaintiff's Motion on May 13, 2003, and
directed the completion of all discovery by July 7, 2003. (Dkt No. 24).
On June 23, 2003, over one year after the filing of the Complaint,
Plaintiff filed a Motion for Leave to File an Amended Complaint. The
Court granted Plaintiff's motion on July 23, 2003. On August 11, 2003,
the Court entered a Second Amended Scheduling Order which mandated the
completion of all discovery by November 10, 2003. Plaintiff filed an
Amended Complaint on August 21, 2003. On December 10, 2003, in compliance
with the Court's Second Amended Scheduling Order, Defendants filed a
Motion for Summary Judgment. On January 9, 2004, just three days before
Plaintiff's response was due, Plaintiff fired his counsel.
On January 12, 2004, proceeding pro se again, Plaintiff filed a Motion
for Extension of Time to file a response to Defendants' Motion for
Summary Judgment. On January 12, 2004, the Court granted Plaintiff's
motion, directing Plaintiff to respond to Defendants' Motion for Summary
Judgment by February 6, 2004.
On January 26, 2004, over two and one half months after the close of
discovery, Plaintiff filed a Motion for Extension of Discovery Deadline.
This motion is presently under consideration. Plaintiff has failed to
conduct any discovery to date. (See Defs.'Motion and Br., Dkt. Nos. 40,
A party seeking to re-open discovery in response to a summary judgment
motion must demonstrate: (1) the particular information sought, (2) how
the information would preclude summary judgment, and (3) why it has not
previously been obtained. See Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508,
511 (3d Cir. 1994); St. Surin v. Virgin Islands Daily News, Inc.,
21 F.3d 1309, 1314 (3d Cir. 1994).
Plaintiff seeks to re-open discovery to depose Paul Snyder and other
police officials who
testified at Zoning Board hearings, as well as the members of the Zoning
Hearing Board. (PL Motion ¶ 7). Plaintiff also asserts that he may send
"written interrogatories to the neighbors who testified at the zoning
hearings." (Id.) Plaintiff, however, fails to make the requisite showing
as to the significance of this information on the issue of summary
judgment. Most importantly, Plaintiff fails to provide adequate
explanation as to the reasons underlying his failure to obtain this
information during the protracted, and oft extended, discovery period.
It is the Court's strong view that Plaintiff has been afforded ample
opportunity to conduct discovery. This case has been pending since June
18, 2002 and has been delayed numerous times. The Court has granted
Plaintiff every courtesy in the extension of discovery and motion
response deadlines. Plaintiff was also permitted to file an amended
complaint after the expiration of the initial discovery deadline. In
spite of these considerations, Plaintiff and his representatives have
failed to conduct any discovery whatsoever. (See Defs.'Motion and Br.,
Dkt. Nos. 40, 41). This inactivity demonstrates a lack of appreciation of
the meaning of a judicial order, a failure by Plaintiff to recognize his
obligation to develop his factual allegations in a timely manner, and
violates the spirit of the November 26, 2002, Scheduling Conference where
deadlines were established after full consideration of the
recommendations of the parties. Moreover, at that time, both sides were
advised of their responsibility to move this case toward disposition.
Plaintiff attempts to explain this inactivity by alleging "[a]ttorney
Keller . . . allowed the discovery period in this case to expire without
conducting any discovery, contrary to the Plaintiff's express
instructions." Plaintiff also alleges that "[a]ttorney Keller allowed the
discovery period to elapse without consulting the Plaintiff and without
informing Plaintiff of his
failure." (PL Motion ¶ 3).
Despite Plaintiff's efforts to render Keller entirely responsible for
the failure to conduct any discovery in this case, Plaintiff shares
responsibility for this history of protracted inactivity. After all,
Plaintiff proceeded pro se for almost a year without conducting any
discovery. Indeed, Keller entered his appearance just nine days prior to
the arrival of the initial discovery deadline. After Keller entered his
appearance, the Court further accommodated Plaintiff by amending the
scheduling order two additional times in order to afford Plaintiff
adequate time to conduct discovery. Plaintiff, of course, was always
obligated to work with his counsel in an effort to complete discovery.
"[A] pro se plaintiff must bear the responsibility of pursuing his
claim and at the minimum he must be willing to participate in the
discovery process." Marcolongo v. School Dist. of Philadelphia. 1999 WL
1011899, at * 5 (E.D. Pa. Nov. 5, 1999) (citing Long v. Chambers. 1991 WL
111174 (E.D. Pa. June 14, 1991)). And, although represented by counsel
for a portion of this litigation, Plaintiff "bears or shares
responsibility for the failure to properly litigate this action." See
Mondesir v. Trans Union, 1999 WL 907568, at * 1 (E.D. Pa. Oct. 18,
1999). It is abundantly clear that Plaintiff is not without fault as to
the failure to conduct discovery. It is also evident that, whether
represented or proceeding pro se, Plaintiff had ample opportunity to
Moreover, it appears that Plaintiff has been less than cooperative with
Defendants' discovery efforts in this case. Defendants allege that
Plaintiff failed to appear for scheduled depositions on February 6, 2003
and February 21, 2003, and when Plaintiff was finally deposed on March
14, 2003, he attempted to stop the deposition by asserting that he was
mentally ill. (Defs.' Memo ¶ 12(g)).
Defendants' Motion for Summary Judgment is pending before the Court. As
Defendants correctly contend, it would be unduly prejudicial to the
Defendants to permit the re-opening of discovery at this juncture. Such a
ruling would provide Plaintiff the unfair opportunity to tailor discovery
in direct response to their arguments. Accordingly, Plaintiff's Motion
for Extension of Discovery Deadline is denied.
AND NOW this day of February, 2004, upon consideration of Plaintiff s
Motion for Extension of Discovery Deadline (Dkt. No. 38) is DENIED. It is
further ORDERED that Plaintiff shall respond to Defendants' Motion for
Summary Judgment by February 27, 2004.
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