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Horn v. Kline

November 23, 2007

LINDA HORN, ADMINISTRATRIX OF THE ESTATE OF BARRY HORN, PLAINTIFF
v.
ROBERT T. KLINE AND CUMBERLAND COUNTY, DEFENDANTS



The opinion of the court was delivered by: Chief Judge Kane

MEMORANDUM

Before the Court are cross-appeals of non-dispositive orders by Magistrate Judge Smyser pursuant to Local Rule 72.2. (Doc. Nos. 73, 89.) For the following reasons, both appeals will be denied.

I. BACKGROUND

On February 16, 2007, Magistrate Judge Smyser entered a case management order establishing a discovery deadline of July 2, 2007 in the above-captioned case, stating that:

The court will, in the absence of good cause, adhere to the schedule hereby established. Continuances of trial and extensions of the discovery period will be granted only when good cause arises and application is timely made. Good cause shall be found only when new circumstances have occurred that could not reasonably have been anticipated and that are of an extraordinary nature. (Doc. No. 42, ¶ 11.)

A. Motion to compel discovery and for sanctions (Doc. No. 57)

On June 1, 2007, Plaintiff filed a motion to compel discovery and for sanctions (Doc. No. 57) on the grounds that Defendants failed to comply with the discovery requirements under Federal Rule of Civil Procedure 26(a)(1)(A). According to her motion, although Defendants had provided a list of witnesses, the list did not identify the subjects of discoverable information as required by the rule.*fn1 The motion also indicated that Magistrate Judge Smyser discussed the matter with the parties and orally directed Defendants to comply with the rule. On July 6, 2007, Magistrate Judge Smyser granted Plaintiff's motion, directed Defendants to comply with the rules, and ordered reasonable attorneys' fees incurred by Plaintiff in preparing and briefing the motion. (Doc. No. 68.) On July 19, 2007, Defendants appealed the order of Magistrate Judge Smyser. (Doc. Nos. 73, 74.)

B. Motion to extend the discovery deadline (Doc. No. 65)

On June 29, 2007, Plaintiff filed a motion to extend the discovery deadline, which was due to expire in three days, on the grounds that "Plaintiff's counsel has attempted for months to schedule the depositions of the defendants and they have been uncooperative." (Doc. No. 65 ¶ 2.) Defendants did not concur in the motion.

On July 6, 2007, Magistrate Judge Smyser denied the motion on the grounds that Plaintiff failed to comply with the requirements set forth in the case management order. Specifically, Magistrate Judge Smyser ruled that "counsel could have noticed the depositions of the defendants at any time after the case management conference of October 23, 2006. This June 29, 2007 motion to extend the July 2, 2007 discovery deadline is not timely, and extraordinary circumstances are not presented." (Doc. No. 67, at 2.)

On July 19, 2007, Plaintiff moved for reconsideration of the order, asserting that:

(1) "Plaintiff made good faith efforts to schedule the depositions of the defendants, but Defendants' counsel caused the depositions to be cancelled"; and (2) "Defendants' counsel did not comply with the direction of the magistrate judge to supplement his [sic] Defendants' Initial Disclosures to state the subject matter of the discoverable information that was in the possession of the listed witnesses until July 9, 2007, after the close of discovery [thereby preventing] Plaintiff from identifying witnesses that it was necessary to depose for Plaintiff to develop his theory of the case and prevented the Plaintiff from engaging in other discovery." (Doc. No. 70, at 2.) Magistrate Judge Smyser denied the motion for reconsideration on August 1, 2007. (Doc. No. 84.) Plaintiff appealed.

II. STANDARD OF REVIEW

This appeal is brought pursuant to Local Rule 72.2, which provides in relevant part that "[a]ny party may appeal from a magistrate judge's order determining a non-dispositive pretrial motion . . . in which the magistrate judge is not the presiding judge of the case." LR 72.2; accord Fed. R. Civ. P. 72(a); 28 U.S.C. ยง 636(b)(1)(A). On review, this Court is to "consider the appeal and shall set ...


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