Marcus v. Howard

• Court: District Court, W.D. New York
• Decided: December 1, 2022
• Docket: 1:20-cv-00316
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _____________________________________

FELIPPE MARCUS, DECISION Plaintiff, and v. ORDER

CITY OF BUFFALO, 20-CV-316JLS(F) OFFICER CALVIS McKNIGHT, OFFICER VINCENT HUMPHREY, COMMISSIONER BRYON LOCKWOOD, LIEUTENANT RONNY BLATCHFORD, THOMAS LYNCH, TYLER FONVILLE, AARON WATKINS, JOSEPH JUSZKIEWICZ,

Defendants. _____________________________________

APPEARANCES: FELIPPE MARCUS, Pro Se 2500 South Abilene Street P.O. Box 441058 Aurora, Colorado 80044

CAVETTE CHAMBERS CITY OF BUFFALO CORPORATION COUNSEL Attorney for Defendants DAVID M. LEE, Assistant Corporation Counsel, of Counsel 1000 City Hall 65 Niagara Street Buffalo, New York 14202

JURISDICTION In this action alleging violations of Plaintiff’s rights under the Fourteenth Amendment and state law, by papers filed October 11, 2022, Plaintiff moves to compel expert disclosures (Dkt. 102) and to compel fact discovery (Dkt. 103). By papers filed November 1, 2022, Plaintiff further moves to compel fact discovery (Dkt. 108) (together, “Plaintiff’s motions”). Defendants’ responses were filed November 8, 2022 (Dkts. 112, 113) (“Defendants’ Responses”). In sum, Plaintiff’s motions seek interrogatory answers, document production including unredacted surveillance video, and responses to Plaintiff’s Requests for

Admission. See Dkt. 78, 79. Defendants responses indicate Defendants have no objections, except with respect to Plaintiff’s Interrogatories (see Dkts. 112 ¶ 14, Dkt. 113 ¶ 14), discussed, infra, to Plaintiff’s motions, that Defendants will provide complete responses within 33 days, see Dkt. 112 ¶ 16; Dkt. 113 ¶ 16, and request the deadline for dispositive motions be extended by 90 days to February 28, 2023. See Dkt. 112 ¶ 16; Dkt. 113 ¶ 16. As indicated, Defendants object to Plaintiff’s multiple interrogatories arguing that Rule 33(a)(1)’s limitation of 25 interrogatories per party should be construed to limit interrogatories to the “side” rather than per party. See Dkt. 112 ¶ 14; Dkt. 113 ¶ 14 (citing Zito v. Leasecomm Corp., 233 F.R.D. 395, 399 (S.D.N.Y. 2006)). Although the court in Zito acknowledges that such a construction may be appropriate in

some instances, such an approach would require a case-by-case determination. Zito, 233 F.R.D. at 399 (citing 8B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PROACTICE AND PROCEDURE § 2168.1, at 261 (2d. ed. 1994). Here, the individual police officer Defendants are alleged to have engaged in discrete forms of excessive force by use of, e.g., “an unknown item” (see Dkt. 103 at 2), or a “Taser” (see id. at 5), physical contact with Plaintiff, and blows from “something” in the hands (“a silver object”) of another of the Defendant officers. See id. at 3. As such, individual interrogatories to each officer Defendant are warranted in this case. Moreover, Defendants’ failure to timely object waives any further grounds for objections to any of Plaintiff’s discovery requests. See In re DG Acquisition Corp., 151 F.3d 75, 84 (2d Cir. 1998) (citing cases).

CONCLUSION

Plaintiff’s motions (Dkts. 102, 103 and 108) are GRANTED. Defendants shall respond to Plaintiff’s outstanding discovery requests within 33 days. Defendants’ request to modify the Scheduling Order has been GRANTED in a Text Order filed November 28, 2022 (Dkt. 114). SO ORDERED.

/s/ Leslie G. Foschio _________________________________ LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

Dates: December 1st, 2022 Buffalo, New York

Any appeal of this Decision and Order must be taken by filing written objection with the Clerk of Court not later than 14 days after service of this Decision and Order in accordance with Fed.R.Civ.P. 72(a).