United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
December 17, 2018, plaintiff filed a motion to extend the
discovery deadline “to complete depositions of two
defense witnesses.” (ECF No. 64.) Defendant City of
Milwaukee opposed the motion:
Defendant does not assert that it would be prejudiced by
another extension, but rather submits that with no
depositions conducted in this matter up to the time of this
filing, the time to move forward, by reasonable measure, has
come and passed, such that another extension would constitute
a reward to Plaintiff not in spite of, but rather because of,
her failure to prosecute her case in a reasonably timely
(ECF No. 65 at 1.) The court granted plaintiff's motion
and extended the discovery deadline to January 18, 2019, but
warned plaintiff that, absent extraordinary
circumstances, it would not grant plaintiff any further
extensions in this matter. (ECF No.66.)
before the court is plaintiff's Rule 7(h) expedited,
non-dispositive motion to compel the deposition of Police
Captain John Sgrignuoli (ECF No. 67) filed by plaintiff on
January 14, 2019. Plaintiff states that she “has been
seeking the deposition of John Sgrignuoli specifically since
November 19, 2018, ” but has been unable to depose him.
(ECF No. 67 at 1.) She “seeks an order compelling the
attendance of witness John Sgrignuoli at a deposition on a
date mutually convenient for the parties sometimes in the
next 45 days and allowing for time for reasonable discovery
follow-up after his deposition on issues raised in the
deposition.” (Id. at 2.)
response, defendant argues that “[t]he deposition at
issue is not of such value, and the Plaintiff is not so
blameless in not having conducted the deposition sooner, that
it warrants yet another extension of discovery in this
matter.” (ECF No. 69 at 3.) However, defendant admits
that it will not be prejudiced by another extension.
(Id. at 2.)
receiving the defendant's response, plaintiff filed an
amended Rule 7(h) expedited, non-dispositive motion “to
compel the deposition of a key defense witness in this case,
Police Captain John Sgrignuoli.” (ECF No. 71 at 1.) It
appears that the only difference between plaintiff's
original motion and her amended motion is that she now seeks
an order compelling Sgrignuoli to attend a deposition on a
specific date and time- February 12, 2019 at 10 a.m.
(Id. at 2.)
court understands defendant's frustration with
plaintiff's lack of diligence in prosecuting this case.
The defendant has been more than cooperative in not opposing
the plaintiff's requests for additional time to conduct
discovery. It eventually ran out of patience. The court
cannot identify anything that the defendant has said in
opposing the last two requests for still more time with which
it disagrees. Having said that, it appears that plaintiff has
made efforts to procure the deposition of Sgrignuoli.
(See ECF No. 68, ¶¶ 4-27.) It also appears
that plaintiff has completed one of the two depositions for
which she sought an extension of the discovery deadline to
January 18, 2019, to complete. (See ECF No. 69 at
plaintiff has made efforts in procuring the deposition of
Sgrignuoli, and because defendant will not be prejudiced by
another extension, the court will grant plaintiff's
motion insofar as it seeks an extension of the discovery
deadline. However, the court will deny plaintiff's
request for an order compelling Sgrignuoli to attend the
deposition on a particular date. Sgrignuoli is not a party to
this lawsuit. To compel his attendance at a deposition, a
subpoena is required. Fed.R.Civ.P. 30(a)(1). Plaintiff opted
instead to attempt to get the defendant to agree to produce
Sgrignuoli for a deposition. The advantage to Sgrignuoli to
such an arrangement is that he has input on picking a date
that is convenient to him. Instead, Sgrignuoli took the
position that he would not attend a deposition until he was
served with a subpoena-which he had the right to insist on.
Of course, the downside to taking that position is that he
will be stuck with whatever date is chosen by plaintiff as
long as she provides him with reasonable notice of the date.
Fed.R.Civ.P. 30(b)(1). However, plaintiff has not yet served
Sgrignuoli with a subpoena. Although she contends she has
tried and that he is evading service, she has not submitted
any evidence to support that allegation. If once he is served
with a subpoena Sgrignuoli refuses to comply with it,
plaintiff may at that time file an appropriate motion.
deadline to complete all discovery shall be extended
to March 8, 2019, and the dispositive motions deadline shall
be extended to April 8, 2019. As previously stated,
absent extraordinary circumstances the court will not grant
plaintiff any further extensions of time.
More than further difficulties in scheduling
Sgrignouli's deposition will be required to establish
IS THEREFORE ORDERED that plaintiff's motion
compel (ECF No. 67) is granted to the extent
that it seeks an extension of the discovery deadline.
Plaintiff's amended motion to compel (ECF No. 71),
seeking an order compelling Sgrignuoli to attend a deposition
on February 12, 2019 at 10 a.m., is denied.
The discovery deadline shall be ...