The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KATHLEEN WRIGHT CROFT, SAMUEL )
E. CROFT JR., )
) 2:20-CV-01430-CCW
)
Plaintiffs, )
)
vs. )
)
DONEGAL TOWNSHIP, RICHARD )
)
FIDLER, TAMMI IAMS, RICHARD
)
MARTIN, LANE TURTURICE, )
)
)
Defendants.
)
MEMORANDUM ORDER FOR EXPEDITED DISCOVERY
AND NOW, having reviewed Plaintiff’s Motion to Expedite Discovery and Defendants’
Response in Opposition thereto, and in consideration of Plaintiffs’ Amended Complaint,
Plaintiffs’ Motion for Preliminary Injunction, and Defendants’ Motion to Dismiss, Plaintiffs’
Motion to Expedite Discovery is hereby GRANTED IN PART and DENIED IN PART. The
parties may conduct limited discovery relevant to preparing for a hearing on Plaintiffs’ Motion
for Preliminary Injunction in accordance with the scope and schedule detailed more fully below.
I. Background
Plaintiffs’ claims arise from alleged conflicts between the elected members of the
Donegal Township Board of Supervisors (“Board”). According to Plaintiffs’ Amended
Complaint, ECF No. 24, Plaintiff Kathleen Wright Croft (“Wright Croft”), who allegedly forms
the “minority” faction with one other member of the five-member Board, has been subjected to
retaliation from the “majority” defendant-Board members for exercising her rights under the
First Amendment to the U.S. Constitution. This alleged retaliation has purportedly taken the
form of exclusion from Board deliberations; removal and exclusion from the Township
building; denial of access to Township books and records; denial of access to Township
employees; and having various civil and administrative actions filed against her. Plaintiffs
allege that these actions have seriously impeded Wright Croft’s ability to fulfill her duties as an
elected member of the Board. Plaintiffs further allege that, under the Fourteenth Amendment,
these actions constitute an equal protection violation under a “class of one” theory and a due
process violation by effectively “nullifying” Wright Croft’s and Plaintiff Samuel Croft’s votes to
elect Wright Croft to the board. Finally, Plaintiffs claim that the complained-of conduct violates
Pennsylvania’s Second Class Township Code and Sunshine Act.
On November 13, 2020, Plaintiffs filed the instant Motion to Expedite Discovery, ECF
No. 29, in connection with their renewed Motion for Preliminary Injunction, ECF No. 25.
Plaintiffs are seeking the following preliminary injunctive relief:
• That the Defendants be enjoined “from excluding Plaintiff, Kathleen Wright Croft, from
full participation in the affairs of the Board of Supervisors of Donegal Township”;
• Ordering that “the ‘chain of command policy’ be dissolved forthwith”;
• Ordering that “deliberations of the Supervisors, whether in executive and/or in public
session, include Plaintiff, Kathleen Wright Croft”;
• Ordering “that Plaintiff, Kathleen Wright Croft, be granted free uninterrupted and
unfettered access to all books and records of Donegal Township”; and
• Declaring “that Plaintiff, Kathleen Wright Croft, be entitled to enjoy the same rights,
privileges and emoluments of her elected office as are the other four members of the
Board of Supervisors of Donegal Township.”
See ECF No. 25-2. Plaintiffs argue that expedited discovery is needed “to fully and adequately
prepare for the preliminary injunction hearing.” ECF No. 29 at ¶19. They further assert that
“[t]he need for expedited discovery is exigent due to the fragile nature of some of the evidence,
such as electronically stored information.” Id. at ¶28. Plaintiffs attached to their Motion
interrogatories and document requests directed to Defendants Fidler, Martin and Iams and a
separate, substantially similar, set of requests directed to Defendant Turturice. ECF Nos. 29-1
and 29-2.1 Plaintiffs’ proposed discovery requests seek information dating as far back as January
1, 2018, related to specific acts, incidents or topics that Plaintiffs assert would support their
underlying claims. Plaintiffs claim they need such information to demonstrate their likelihood of
success on the merits, a burden they will have to carry to obtain a preliminary injunction.
Defendants filed a Motion to Dismiss, contesting whether Plaintiffs’ Amended Complaint
sets forth any cognizable claims at all and asserting a qualified immunity defense as to Plaintiffs’
First Amendment retaliation claims. ECF No. 33. Defendants further contest whether expedited
discovery is appropriate. See ECF No. 34. Defendants oppose Plaintiffs’ Motion to Expedite
Discovery, in part, on the ground that their Motion to Dismiss may dispose of Plaintiffs’ claims
entirely, thereby obviating the need for discovery, expedited or otherwise. See id. at 1.
Defendants further contend that Plaintiffs’ requests “relat[e] broadly to the matters alleged in the
Amended Complaint (which… is based upon past incidents and fails to demonstrate any alleged
continuing course of conduct).” Id. at 3. Defendants argue, therefore, that the discovery
proposed by Plaintiffs “would more appropriately be the subject of discovery following the
Court’s disposition of Defendants’ pending motion” and that “Plaintiff has failed to establish any
1 Plaintiffs’ Motion to Expedite Discovery does not include a request for any depositions.
basis for a preliminary injunction or a hearing related to the same.” Id. Accordingly, Defendants
urge the Court to deny Plaintiffs’ request for expedited discovery.
II. Discussion
Under the Federal Rules of Civil Procedure, a district court is empowered to alter the
scope, timing and sequence of discovery. Fed. R. Civ. P. 26(b)(1) and 26(d)(1). Indeed, the
United States Court of Appeals for the Third Circuit has “long held that ‘matters of docket
control and conduct of discovery are committed to the sound discretion of the district court.’”
Reisinger v. City of Wilkes-Barre, 520 Fed.Appx. 77, 80 (3d Cir. 2013).
Although the Third Circuit has not provided guidance regarding the appropriate standard
a district court should apply when considering a motion for expedited discovery in the context of
a motion for preliminary injunction, other courts in this district deciding similar motions have
generally applied a “good cause” standard. See, e.g., Exclusive Supplements, Inc. v.
Abdelgawad, 2013 WL 160275, at *1 (W.D. Pa. Jan. 15, 2013) (“This Court has the authority to
grant this relief if good cause exists to do so.”) (citing Fonovisa, Inc. v. Does 1-9, 2008 WL
919701, at *10 n. 22 (W.D. Pa. Apr. 3, 2008).
Accordingly, district courts in this circuit have typically “require[d] the party seeking
discovery to show ‘good’ cause for its motion, such that the request is ‘reasonable’ in light of the
circumstances.” Samuel, Son & Co., Inc. v. Beach, 2013 WL 4855325, at *3 (W.D. Pa. Sept. 11,
2013). Pursuant to this standard, courts should consider “whether ‘the plaintiff's need for
expedited discovery, in consideration of the administration of justice, outweighs the possible
prejudice or hardship to the defendant.’” Samuel, 2013 WL 4855325, at *3 (quoting Fonovisa,
Inc., 2008 WL 919701, at *10 n. 22 (“Situations where good cause is frequently found include
when a party seeks a preliminary injunction, and when physical evidence may be consumed or
destroyed with the passage of time, thus causing one or more of the parties to be
disadvantaged.”).
The Court is mindful of the fact that Defendants’ Motion to Dismiss, ECF No. 31, is
pending and resolution of that motion may dispose of some or all of Plaintiffs’ claims. The
Court also considers relevant here the point raised by Defendants that the allegations in
Plaintiffs’ Amended Complaint are generally related to past (rather than ongoing) conduct—and,
as such, are not clearly amenable to the forward-looking relief sought in Plaintiffs’ Motion for
Preliminary Injunction. However, taken as a whole, Plaintiffs’ allegations describe a long-
running effort to exclude Wright Croft from participation in the affairs of Donegal Township,
and the possibility that such efforts may be ongoing (such as the allegation that the so-called
“chain of command policy” is still in use), militates in favor of permitting targeted, expedited
discovery to take place in advance of a hearing on Plaintiffs’ Motion for Preliminary Injunction.
Thus, while the Court takes no position on whether Plaintiffs will succeed on either their Motion
for Preliminary Injunction or their underlying claims, the Court finds that Plaintiffs have shown
good cause for certain expedited discovery.
That said, the Court agrees with Defendants that Plaintiffs’ proposed discovery is overly
broad and may exceed the scope of what is needed to prepare for a hearing on the Motion for
Preliminary Injunction. To that end, and in accordance with the schedule and terms set forth
below, the parties may conduct discovery related to preparing for a preliminary injunction
hearing, limited to the time period January 2020 to present (when Defendants Martin, Fidler and
Iams became the Board “majority” and Defendant Turturice became Township Solicitor), and
relevant to demonstrating an ongoing course of conduct to exclude Wright Croft from
participating in Township governmental affairs (including, for example, the so-called “chain of
command” policy, denial of access to books and records, or impeding Wright Croft’s ability to
communicate with Township employees). This scope of discovery is broad enough for the
parties to sufficiently develop a record in advance of the preliminary injunction hearing, but not
so broad as to prejudice or impose undue hardship on Defendants in the event that some of
Plaintiffs’ underlying claims do not survive the Motion to Dismiss.
III. Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Expedite Discovery is hereby
GRANTED IN PART and DENIED IN PART. The parties may engage in limited discovery to
prepare for the preliminary injunction hearing as set forth above.
In accordance with the foregoing, IT IS HEREBY ORDERED that expedited discovery
shall proceed as follows:
1. Discovery shall proceed on the following schedule:
a. All written discovery requests shall be served on or before November 25, 2020;
b. All responses to written discovery requests shall be made on or before December
16, 2020;
c. All depositions shall be completed on or before January 6, 2021.
2. Each party’s written discovery shall be limited as follows:
a. No more than five (5) interrogatories, including subparts;
b. No more than five (5) requests for admission;
c. No more than five (5) requests for the production of documents.
3. Each party may take no more than three (3) depositions, limited to the scope of discovery
set forth in this Order.
IT IS FURTHER ORDERED that a Telephonic Post-Expedited Discovery Status
Conference will be held before the undersigned on January 11, 2021 at 9:00 a.m., and that a
hearing on Plaintiffs’ Motion for Preliminary Injunction shall be held before the undersigned on
January 27, 2021 at 9:00 a.m.
DATED this 19th day of November, 2020.
BY THE COURT:
/s/ Christy Criswell Wiegand
CHRISTY CRISWELL WIEGAND
United States District Judge
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