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Feltner v. Mike's Trucking

United States District Court, Sixth Circuit

May 28, 2013

CHARLES FELTNER, Plaintiff,
v.
MIKE'S TRUCKING (MICHAEL CULBERTSON), Defendant.

OPINION AND ORDER

NORAH McCANN KING, Magistrate Judge.

This matter is before the Court on the Motion of Defendants to Compel Discovery and for Sanctions (" Motion to Compel "), Doc. No. 22. Defendants Mikes Trucking and Michael Culbertson seek an order compelling plaintiff Charles Feltner to appear for a continued deposition, to answer questions posed by counsel at the deposition, and to pay defendants' reasonable expenses, including attorney's fees, incurred in filing the Motion to Compel. Id. at p. 1. This matter is also before the Court on the Motion of Defendants to Extend the Case Schedule (" Motion to Extend "), Doc. No. 26.

I. Background

Plaintiff, who is proceeding without the assistance of counsel, was noticed for a deposition and appeared at the offices of defendants' counsel for a deposition on April 9, 2013. See Motion to Compel, Exhibits A-C. At the deposition, plaintiff answered questions about his name, age, the medications he takes, and his education, but then stated that he would invoke the Fifth Amendment privilege against self-incrimination in response to all further questions. Deposition of Charles W. Feltner (" Feltner Deposition "), attached to Motion to Compel as Exhibit D, at PAGEID 199. The parties then contacted the Court in an attempt to resolve their discovery dispute. The undersigned was unavailable and United States Magistrate Judge Terence P. Kemp graciously agreed to hold a discovery conference with the parties by telephone. Id. at PAGEID 197. The discovery conference with Judge Kemp is transcribed in the Feltner Deposition.

During the conference, plaintiff explained that he was not actually concerned about incriminating himself, but that he had been advised by an acquaintance that he should "take the Fifth Amendment until I get legal counsel." Id. at PAGEID 199. Judge Kemp explained to plaintiff the scope of the Fifth Amendment and advised plaintiff that his invocation of the Fifth Amendment was improper under the circumstances. Id. at PAGEID 198-201. Judge Kemp further explained to plaintiff that his failure to answer questions at the deposition could result in the imposition of sanctions, including the dismissal of this case and an award of defendants' reasonable expenses, including attorney's fees. Id. Judge Kemp also explained to plaintiff that the potential monetary sanctions could run into the thousands of dollars. Id. Nevertheless, plaintiff persisted in invoking the Fifth Amendment. Id. at PAGEID 199-201. The deposition thereupon ended and defendants filed the Motion to Compel.

In his response to defendants' Motion to Compel, Response to Defendant's Motion for Discovery and Sanctions (" Plaintiff's Response "), Doc. No. 24, plaintiff states that he "now understand[s] what the Fifth Amendment is" and that he is "willing to answer any questions with the exception of why" his employment was terminated by defendant Mike's Trucking. Id. at p. 1. Plaintiff "feel[s] that answering these questions may influence the outcome of [his] case against Mike's Trucking." Id. Plaintiff also argues that he should not be required to pay defendants' reasonable expenses in filing the Motion to Compel because he does not "fully understand court proceedings." Id.

In their Motion to Extend, defendants seek to extend the deadline to complete discovery from May 31, 2013 to June 30, 2013 in order to complete plaintiff's deposition. Id. at p. 2. Defendants also seek to extend the deadline to file dispositive motions from June 30, 2013 to August 30, 2013 "to allow counsel time to obtain the transcript of the deposition and prepare the motion for summary judgment." Id.

II. Standards

A. Motion to Compel

The Federal Rules of Civil Procedure grant parties the right to "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Rule 37 authorizes a motion to compel discovery when "a deponent fails to answer a question asked under Rule 30." Fed. R. Civ. Pro. 37(a)(3)(B)(i). "The proponent of a motion to compel discovery bears the initial burden of proving that the information sought is relevant." Martin v. Select Portfolio Serving Holding Corp., No. 1:05-cv-273, 2006 U.S. Dist. LEXIS 68779, at *2 (S.D. Ohio Sept. 25, 2006) (citing Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 154, 159 (D.D.C. 1999)).

The party moving to compel discovery must also certify that it "has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Fed.R.Civ.P. 37(a)(1). See also S.D. Ohio Civ. R. 37.2. Although the Motion to Compel does not contain a formal certification, the Court is satisfied that this requirement has been met.

B. Motion to Extend

Rule 16(b) of the Federal Rules of Civil Procedure requires that the Court, in each civil action not exempt from the operation of the rule, enter a scheduling order that limits the time to, inter alia, complete discovery and file motions. Fed.R.Civ.P. 16(b)(1), (b)(3)(A). The rule further provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). See also S.D. Ohio Civ. R. 16.2 ("[T]he Magistrate Judge is empowered to... modify scheduling orders upon a showing of good cause."). "The primary measure of Rule 16's good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements.'" Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting ...


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