“[A] court choosing to modify the schedule upon a showing of good cause, may do so only if it cannot reasonably be met despite the diligence of the party seeking the extension.” (quotation omitted)
How later courts described this case
- “[A] court choosing to modify the schedule upon a showing of good cause, may do so only if it cannot reasonably be met despite the diligence of the party seeking the extension.” (quotation omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HERBERT G. GERDAU,
Plaintiff,
v. Civil Action 2:21-cv-4152
Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura
CAMBRIDGE CITY POLICE, et al.,
Defendants.
ORDER
This matter is before the Court on Plaintiff’s pro se Motion for Extension of Time and
Request for Evidence (ECF No. 25) and the Response in Opposition filed by Defendants,
Officers Castro and Eubanks (ECF N. 27). For the reasons that follow, Plaintiff’s Motion is
GRANTED IN PART AND DENIED IN PART WITHOUT PREJUDICE.
I.
Plaintiff filed this § 1983 action against Officers Eubanks, James, and Castro and the
Cambridge City Police alleging that his Fourth Amendment Rights were violated when the
individual defendants used excessive force against him during a traffic stop. (ECF No. 2.) After
Plaintiff filed an amended Complaint (ECF No. 7), it was recommended that Plaintiff’s claims
against Office James be dismissed pursuant to 28 U.S.C. § 1915(e)(2) and 1915A (ECF No. 8).
The Court adopted that Report and Recommendation (ECF No. 10) and later determined that
Plaintiff’s claims against the Cambridge City Police would also be dismissed. (ECF No. 11.)
Plaintiff subsequently attempted to subpoena body and dash cam footage of his
December 16, 2019 arrest and the December 15, 2019 arrest of a non-party. (ECF Nos. 16.)
Because his initial subpoenas were directed to the wrong law enforcement agency, Plaintiff
withdrew them and issued new ones directed to the correct agency—the Cambridge Police
Department, now a non-party, which employed Officers Eubanks and Castro when Plaintiff was
arrested. (ECF No. 19.) The Cambridge Police Department apparently did not object to the
subpoenas. Indeed, on March 17, 2022, counsel for the remaining Defendants—Officers
Eubanks and Castro— filed a notice indicating that the Cambridge Police Department had
responded to them. (ECF No. 22.)
On June 13, 2022, Plaintiff filed the instant motion seeking a 90-extension of the dates in
the January 11, 2022 Scheduling Order. (ECF No. 25.) Construing that pro se motion liberally,
Plaintiff appears to indicate that he wanted to mail the flash drive containing the subpoenaed
body and dash cam footage to prospective counsel, but the prison confiscated it and instead
mailed his prospective counsel an empty envelope. (Id.) He asks the undersigned to order that the
dash and body cam footage be re-produced to a family member and seeks additional time to meet
the deadlines in the Scheduling Order. (Id.)
Defendants, Officers Eubanks and Castro, oppose the motion. (ECF No. 132.) They
assert that Plaintiff’s request for an Order directing the Cambridge Police Department to send a
second flash drive to a family member constitutes “unreasonable and repetitive discovery” and
that they “are not obligated to provide multiple copies of the same discovery information . . .
simply because [P]laintiff has misplaced or otherwise failed to adequately handle the
evidence.” (ECF No. 27, at PageID # 132.) Because there is no reason to provide Plaintiff with
this additional discovery, Defendants assert that an extension of the deadlines in the Scheduling
Order is also unwarranted.
II.
A. 90-Day Extension
Pursuant to Rule 16(b)(4), a scheduling order “may be modified only for good cause and
with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); see also Tolliver v. Noble, No. 2:16-CV-
1020, 2022 WL 843573, at *5 (S.D. Ohio Mar. 22, 2022) (citing Kirby v. Diversified
Fabrications, Inc., No. 1:08-CV-83, 2010 WL 11520004 (E.D. Tenn. Mar. 26, 2010)). “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) (quotation omitted) (citing cases); see also Leary v. Daeschner,
349 F.3d 888, 906 (6th Cir. 2003) (“[A] court choosing to modify the schedule upon a showing
of good cause, may do so only if it cannot reasonably be met despite the diligence of the party
seeking the extension.” (quotation omitted)).
Here, Plaintiff has established good cause to modify and extend the deadlines that have
yet to expire, (i.e., the deadlines to complete discovery and file dispositive motions, including
motions raising qualified immunity defenses). Plaintiff indicates that the flash drive containing
the subpoenaed materials was confiscated when he attempted to send it to prospective counsel.
(ECF No. 25.) In addition, even though the parties have not addressed precisely when the flash
drive was confiscated, Plaintiff diligently sought a modification of the Scheduling Order—he
filed his motion after he learned that prospective counsel received an empty envelope instead of
the flash drive. Plaintiff further demonstrates diligence by indicating that he has been
“attempting to work with prison officials and/or other contacts outside of prison” to provide the
confiscated materials to prospective counsel. (Id. at PageID # 127.) The Court also notes that
Plaintiff seeks a relatively modest extension of time—90 days—which appears reasonable given
that his subpoenaed materials were confiscated and may need to be reacquired. Notably,
Defendants do not explain, and the Court cannot discern, how this 90-day extension will cause
them to suffer prejudice. Accordingly, Plaintiff’s request for a 90-day extension of the unexpired
deadlines in the Scheduling Order is GRANTED.
B. Re-production of the Subpoenaed Materials
The Court, however, DENIES Plaintiff’s request for an Order directing a non-party, the
Cambridge Police Department, to re-produce the subpoenaed materials.
Rule 45 of the Federal Rules of Civil Procedure permits parties in legal proceedings to
command non-parties to attend depositions; produce documents, electronically stored
information, or tangible items; and permit the inspection of premises. Fed. R. Civ. P.
45(a)(1)(iii). But that subpoena power is not without limits. Subpoenas must strictly comply with
technical requirements described in Rule 45 that are designed to protect non-parties. A
subpoenaed party can object to a subpoena duces tecum within fourteen days after it is served or
by the time specified for compliance, whichever is earlier. Fed. R. Civ. P. 45(d)(2)(B). And a
subpoenaed party can also move to modify or quash any type of subpoena. Fed. R. Civ. P.
45(d)(3). An Order directing the Cambridge Police Department to re-produce the dash and body
cam footage in response to the subpoena that was previously issued and served would circumvent
these protections. In these procedural circumstances, the Cambridge Police Department will not
have an opportunity to resist producing the flash drive a second time.
But the Court also declines Defendants’ invitation to limit the frequency or extent of
discovery. (ECF No. 27 PageID # 131.) Defendants seem to suggest that the Court should limit
Plaintiff from seeking materials from the Cambridge Police Department a second time because
Plaintiff’s desire to do so is unreasonably cumulative or duplicative given that he
“misplaced or otherwise failed to adequately handle” the materials. (ECF No. 27 at PageID #
131–32.) But that fails to address, and even grossly mischaracterizes, Plaintiff’s assertion, which
is that the prison confiscated his legal mail. If that assertion is true, and Defendants do not refute
it, issuing new subpoenas to the Cambridge Police Department is not only reasonable, it may be
the most expeditious way for Plaintiff to move forward. Moreover, there is no numerical limit to
the number of subpoenas that can be issued for documents or items in a civil case.
For that reason, the Court declines, at this juncture, to limit Plaintiff from issuing, and
asking the Court to order service of, new subpoenas directed at the Cambridge Police
Department that seek again the dash and body cam footage but designate a different place for
their production. A party requesting the Clerk of Court to issue a subpoena may designate any
reasonable time and place for production, including, for instance, a residential address located
approximately seven miles from the Cambridge Police Department.
III.
Accordingly, Plaintiff’s motion is GRANTED IN PART. The July 7, 2022 deadline for
discovery and the August 8, 2022 deadline for dispositive motions, including motions raising
qualified immunity defenses, are both extended for 90 days. Plaintiff’s request for an Order
directing the Cambridge Police Department to re-produce the dash and body cam footage is
DENIED WITHOUT PREJUDICE. Plaintiff may, however, again subpoena the dash and body
cam footage and designate a different address for production. The Clerk is DIRECTED to mail
to Plaintiff copies of subpoena forms with this Order.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE