The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Jerome Garcia, ) C/A No.: 3:19-1934-JMC-SVH
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Plaintiff, )
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vs. ) ORDER
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Danny Brown and Addy Perez, )
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Defendants. )
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Jerome Garcia (“Plaintiff”), proceeding pro se and in forma pauperis,
brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional rights. All pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civ.
Rule 73.02(B)(2)(d) (D.S.C.). This matter comes before the court on
Plaintiff’s motions: (1) to compel and for sanctions [ECF No. 48]; (2) for an
extension of time to complete discovery [ECF No. 53]; and (3) for issuance of a
subpoena [ECF No. 54].
I. Motion to Compel and for Sanctions
Plaintiff moves to compel responses to his March 10, 2020 discovery
request for audio and video footage of the December 16, 2017 incident that is
the subject of the complaint. [ECF No. 48]. Defendant response notes that
Plaintiff’s discovery request was untimely, as the deadline for discovery
expired on March 11, 2020. [ECF No. 52]. Additionally, counsel indicates the
body camera footage was deleted pursuant to policy on March 16, 2018. [ECF
No. 49-5]. Plaintiff did not file a reply. Because Plaintiff’s discovery request
was untimely and because the requested discovery was deleted, Plaintiff’s
motion to compel is denied.
II. Motion for Extension of Discovery Deadline and Issuance of Subpoena
Plaintiff’s motions for an extension of the discovery deadline and
issuance of a subpoena are related, as Plaintiff is not entitled to the issuance
of a subpoena if the deadline for discovery is not extended.
Plaintiff filed his motion for an extension of the discovery deadline on
May 18, 2020, over two months after the deadline expired and over three
weeks after Defendants filed their motion for summary judgment. “A
scheduling order is not a frivolous piece of paper, idly entered, which can be
cavalierly disregarded by counsel without peril.”
867 F. Supp. 1238, 1250 (D.S.C. 1994). Plaintiff has not addressed
Federal Rule of Civil Procedure 16(b), which provides that a “schedule may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b). As the Fourth Circuit has explained, “after the deadlines provided by a
scheduling order have passed, the good cause standard [of Federal Rule of
Civil Procedure 16] must be satisfied to justify leave to amend the pleadings.”
535 F.3d 295, 298 (4th Cir. 2008). The “good
cause” requirement of Rule 16(b) is unlike the more lenient standard of Rule
15(a) in that Rule 16(b) “does not focus on the bad faith of the movant, or the
prejudice to the opposing party,” but focuses on the diligence of the party
seeking amendment. Dilmar Oil Co., Inc. v. Federated Mut. Ins. Co., 986 F.
Supp. 959, 980 (D.S.C. 1997).
Here, Plaintiff has not shown he has been diligent in seeking
amendment. Although Plaintiff references the global pandemic caused by
COVID-19, the discovery deadline in this case expired on March 11, 2020,
prior to Governor McMaster declaring a state of emergency in South
Carolina. See Executive Order No. 2020-08. Additionally, the scheduling
order provides “All discovery requests, including subpoenas duces tecum,
shall be served in time for the responses thereto to be served by this date.”
[ECF No. 21].
Because Plaintiff has not shown good cause for the extension of the
discovery deadline, his motions [ECF Nos. 53, 54] are denied.
IT IS SO ORDERED.
(Ye. V. adper
May 22, 2020 Shiva V. Hodges
Columbia, South Carolina United States Magistrate Judge