Mesmer v. St. Mary's County et al, No. 8:2010cv01053 - Document 52 (D. Md. 2011)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 11/14/11 sat). Signed by Chief Judge Deborah K. Chasanow on 11/14/11. (sat, Chambers) Modified on 11/14/2011 to edit text. (rss, Deputy Clerk).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : WILLIAM MESMER : v. : Civil Action No. DKC 10-1053 : ROBERT REZZA, et al. : MEMORANDUM OPINION Presently pending and ready for review in this civil rights case is the motion for relief from judgment or order and for permissive joinder of defendants Mesmer, proceeding pro se. discovery motions. filed (ECF No. 46). (ECF Nos. 48, 51). by Defendant William Also pending are two The issues have been briefed, and the court now rules, no hearing deemed necessary. Local Rule 105.6. For the following reasons, the motion for relief from judgment or order and for permissive joinder of defendants will be granted in part and denied in part. The remaining motions will be granted, with some modification of the requested scheduling order deadline extensions. I. Background On April 28, 2010, Mesmer filed this action under 42 U.S.C. § 1983, alleging that several Maryland State Police officers used excessive force in the course of arresting him in March 2009 for driving while intoxicated. Mesmer further alleged that those troopers and several corrections officers at St. Mary s County Detention Center denied him medical care for the injuries he purportedly suffered as a result. According to Mesmer, the troopers, corrections various state conspired to surrounding the cover officers, up the and events officials arrest by wrongfully convicting him in state court. In two prior decisions, the court dismissed many of the original defendants excessive force and and claims, denial of leaving medical care only claims against State Police troopers Robert Rezza and Roger Redmond. for Maryland (ECF Nos. 4, 24). Of particular relevance here, the court determined that judgment as a matter of law was warranted in Maryland State Police and Corporal Jeffrey Linger. at 24-25, 29). favor of the (ECF No. 24, The court also denied a motion for joinder filed by Mesmer after Linger s dismissal from the case seeking to rejoin Linger as a defendant and to join Barracks Commander Michael Thompson as a new defendant. (ECF No. 28). On August 19, 2011, Mesmer filed the present Motion for Relief from Judgment or Order and for Permissive Join[d]er of Defendants, which seeks to set aside the court s November 18, 2010, memorandum opinion and order granting summary judgment in favor of the Maryland State Police, Linger, and the St. Mary s County corrections officers. (ECF No. 46). Mesmer s motion also attempts to rejoin the Maryland State Police, Linger, and 2 Thompson as defendants, and to join Corporal Jackson1 as a new defendant. (Id.). (ECF No. 47). II. Defendants opposed on September 12, 2011. Mesmer did not reply. Analysis A. Permissive Joinder Mesmer styles his motion in part as one for permissive joinder. He does not seek leave to amend. In fact, this is the second time that Mesmer has made this error in motions practice. (See ECF No. 23). Nevertheless, given his pro se status and the nature of his claims, Mesmer s motion for permissive joinder will be construed as a motion for leave to amend. See Eakins v. Reed, 710 F.2d 184, 186 (4th Cir. 1983) ( [D]istrict courts are under an pleading, obligation and to practice ensure and that joinder technical do not problems prevent of the prosecution of pro se civil rights actions. ). Federal Rule of Civil Procedure 15(a) provides that courts should freely give leave [to amend] when justice so requires. Fed.R.Civ.P. 15. Leave should be granted [i]n the absence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 1 Neither side provides the first name for Corporal Jackson. 3 virtue of allowance amendment. of the amendment, [or] futility of Foman v. Davis, 371 U.S. 178, 182 (1962). Rule 20 introduces certain additional considerations. That rule would permit Mesmer to join parties in a single action if (1) a right to relief is asserted against the defendants with respect to the same transaction or occurrence; and (2) a common question of law or fact will arise in the action. Fed.R.Civ.P. 20(a)(2); see also Hinson v. Norwest Fin. S.C., Inc., 239 F.3d 611, 618 (4th discretion Cir. 2001). concerning the The rule permissive grants joinder courts of wide parties. Aleman v. Chugach Support Servs., Inc., 485 F.3d 206, 218 n.5 (4th Cir. 2007); accord Jeffcoat v. Blyth Eastman Paine Webber, Inc., 896 F.2d (unpublished 1367, table 1990 opinion) WL 15556, ( The at *3 provisions (4th for Cir. 1990) permissive joinder . . . are very broad and the court is given discretion to decide the scope of the civil action. (internal quotations omitted)). The permissive joinder rule is to be construed in view of its purposes to promote trial convenience and expedite the final determination of disputes. Aleman, 485 F.3d at 218 n.5 (quoting Saval v. BL, Ltd., 710 F.2d 1027, 1031 (4th Cir. 1983)). If the addition of parties would not promote these objectives - or if it would result in prejudice, expense, or delay - the court may deny joinder. 4 Id. Here, Mesmer retreads old territory in part by seeking to join the Maryland State Police, Linger, and Thompson. This motion is Mesmer s second attempt to join the Maryland State Police as a defendant, and it is his third attempt to join Linger and Thompson as defendants. For the reasons set forth in the court s November 18, 2010, memorandum opinion (ECF No. 24), judgment was entered in favor of the Maryland State Police and Linger, and for the reasons set forth in the court s February 9, 2011, memorandum opinion (ECF No. 28), Thompson was not joined. Since then, Mesmer has provided neither legal justification nor new factual allegations or evidence for why any of these three parties should be rejoined. The Maryland State Police, Linger, and Thompson may not be joined as defendants.2 As to Corporal Jackson, in Mesmer s motion, Mesmer newly alleges that Maryland State Trooper, Corporal Jackson, has been positively identified by the Plaintiff as the Trooper who, while acting under the color of law, slammed the Plaintiff s head through the wall at the Leonardtown MSP Barracks Plaintiff was in handcuffs and seated on a bench. at 2). while the (ECF No. 46, Corporal Jackson appears to be the unknown Trooper 2 While pro se plaintiffs are granted substantial leeway in how they litigate a case, there are limits to the latitude afforded even to them. In light of his multiple, unsuccessful attempts to join these parties as defendants, Mesmer is cautioned against further attempts to rejoin them without any good faith reasons. 5 who was involved in the alleged use of excessive denial of medical care referred to in the complaint. No. 1, at 14). force and (E.g., ECF Thus, Mesmer s addition of Corporal Jackson as a Defendant satisfies the requirement that relief sought against all joined occurrence. defendants relate to the same transaction or See Fed.R.Civ.P. 20(a)(2). Although Mesmer has not explained how exactly he came to learn this information, the pending motion is the first time in this case that he has specifically alleged involvement in the events at issue by a Corporal Jackson. Mesmer presumably gathered this information through discovery,3 which the court anticipated in its February 9, 2011, order. Per that order, the court finds that it is now expeditious to join Corporal Jackson as a defendant, as determining the Furthermore, despite discovery true identity Defendants appears of to the be fruitful unknown protestations in trooper. regarding the lack of context behind Mesmer s new allegation, they do not actually deny the existence of Corporal Jackson or his putative participation in the events of March 27, 2009. Mesmer s motion for permissive joinder will be granted in part accordingly. 3 On May 31, 2011, Mesmer filed a Motion for Discovery Inspection. (ECF No. 39). On June 2, 2011, this motion denied because discovery materials are not to be filed with court. (ECF No. 42). The court notes, however, that Mesmer s motion, he sought the rank and photograph of an Trooper R. Jackson. (ECF No. 39, at 1). 6 In and was the in MSP addition, given Mesmer s pro se status, the complaint shall be served on Corporal Jackson by the United States Marshal. See Fed.R.Civ.P. 4(c)(3). B. Relief from a Judgment or Order Although Mesmer requests that he be relieved from the court s November 18, 2010, memorandum opinion and order pursuant to Federal Rule of Civil Procedure 60, appropriately analyzed under Rule 54. there has been Fed.R.Civ.P. 60. a final judgment, his motion is more Rule 60 governs where order, or proceeding. The November 18, 2010, order was not a final judgment, however. See Fed.R.Civ.P. Rule 54(b) ( [A]ny order or other decision, however designated, that adjudicates . . . the rights and liabilities of fewer than all the parties . . . may be revised at any time before the entry of a judgment adjudicating . . . all the parties rights and liabilities. ). Thus, Mesmer s motion for relief from judgment is better construed as a motion for reconsideration of an interlocutory order under Commercial Rule Builders, 54(b). Inc., See 936 Fayetteville F.2d 1462, Investors 1469-70 (4th v. Cir. 1991). The precise standard governing a motion for reconsideration of an interlocutory order is unclear. Id. at 1472. While the standards articulated in Rules 59(e) and 60(b) are not binding in an analysis of Rule 54(b) motions, see Am. Canoe Ass n v. 7 Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently look to these standards for guidance in considering such motions, Akeva L.L.C. v. Adidas Am., Inc., 385 F.Supp.2d 559, 565-66 (M.D.N.C. 2005). Public policy favors an end to litigation and recognizes that efficient operation requires the avoidance of re-arguing questions that have already been decided. Most courts have adhered to a fairly narrow set of grounds on which to reconsider their interlocutory orders and opinions. Courts will reconsider an interlocutory order in the following situations: (1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice. Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft Foods., Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md. Aug. 4, 2010) (applying this three-part test when evaluating a motion for reconsideration under Rule 54(b)). reconsideration under Rule 54(b) may not A motion for be used merely reiterate arguments previously rejected by the court. to Beyond Sys., Inc., 2010 WL 3059344, at *2. The crux of Mesmer s argument for relief appears to be based on new evidence of committed by Defendants. Defendants point out fraud, perjury and (ECF No. 46, at 2). that [a]side from bald conspiracy In response, allegations, Plaintiff has presented no evidence to support any ground . . . 8 set forth in his motion. (ECF No. 47, at 2-3). Here, Mesmer has not identified any change in controlling law, additional evidence that was not previously available, or clear error that would alter the court s November 18, 2010, memorandum opinion and order. Indeed, he has attached no documents, affidavits, or declarations to his motion. Instead, Mesmer proposes to proffer evidence via oral argument before the court. 4). (ECF No. 46, at Without at least a sworn statement describing what new evidence he purports to have, how he came to have it, and why he could not have gathered that evidence prior to the court s November 18, 2010, decision, however, Mesmer s request for an evidentiary hearing is denied. Even if Mesmer had verified his motion for relief, his request for a hearing and, consequently, his motion would be denied. The only new piece of information Mesmer purports to have is the last name of the officer who actually slammed the Plaintiff s head through the wall when Mesmer was held at the barracks Corporal Jackson. (ECF No. 46, at 2). This new information, although relevant to his motion for joinder, is completely unrelated to any of the claims or specific Defendants considered order. order in the November 18, 2010, memorandum opinion and Accordingly, Mesmer s motion for relief from judgment or construed as a motion for interlocutory order will be denied. 9 reconsideration of an C. Discovery Motions On September 14, 2011, Defendants filed a motion to compel discovery responses. (ECF No. 48). Specifically, Defendants seek a response from Mesmer to their May 24, 2011, discovery requests. Per Federal Rule 37(a) and Local Rules 104.7 and 104.8, Defendants have in good faith attempted to confer with Mesmer regarding the dispute, and they have provided certificate detailing their efforts. (ECF No. 48-8). Defendants failed diligence, Mesmer has to a Despite provide any responses to their requests nor has he timely objected to their requests. compel, Moreover, thus Mesmer providing no has not explanation opposed for the motion to his delinquency. Accordingly, the motion to compel will be granted. Mesmer will be directed to respond to Defendants May 24, 2011, discovery requests by December 14, 2011. Due to this discovery dispute, on September 26, 2011, the amended deadline for discovery,4 Defendants filed a motion to modify the scheduling order to extend the time for discovery and the filing of pretrial motions. opposed this motion either. (ECF No. 51). Mesmer has not Federal Rule 16(b)(4) states that [a] schedule may be modified only for good cause and with the 4 The scheduling order originally set June 24, 2011, as the close of discovery. (ECF No. 30). That deadline was subsequently extended to September 26, 2011. (ECF No. 45). 10 judge s consent. good cause The primary consideration for Rule 16(b) s standard is the movant s diligence. Lack of diligence and carelessness are the hallmarks of failure to meet the good cause standard. W. Va. Hous. Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va. 2001). [T]he focus of the inquiry is upon the moving party s reasons for seeking modification. If inquiry should end. that party was not diligent, the Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D.W.Va. 1995) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). The court also considers whether the non-moving party could be prejudiced by the delay, the length of the delay, and whether the movant acted in good faith. Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d 757, 768 69 (D.Md. 2010). Here, as noted, Defendants have been fully diligent in their efforts to obtain responses to their discovery requests, and Mesmer has utterly failed to respond in kind. party s failure to respond to discovery requests or A assert timely objections to those requests constitutes good cause for modifying a scheduling order. See, e.g., Heil v. Belle Starr Saloon & Casino, No. CIV. 09 5074 JLV, 2011 WL 1256859, at *11 (D.S.D. Mar. 30, 2011). Furthermore, there is no hint of bad faith on the part of Defendants, and Mesmer has indicated no prejudice that he would suffer should the scheduling order be modified. 11 Accordingly, the motion to modify the scheduling order will be granted. accommodate The scheduling Defendants request order as will well as be modified to the addition of Corporal Jackson as a Defendant as follows: ¢ January 13, 2012: Depositions and other discovery must be completed. Interrogatories and requests for production of documents must be served on the opposing party early enough to allow a response before this deadline. ¢ January 13, 2012: be filed. Post-discovery status report must ¢ February 13, 2012: be filed. Dispositive pretrial motions must III. Conclusion For the foregoing reasons, the motion for relief from judgment or order and for permissive joinder of defendants filed by Defendant Mesmer will be granted in part and denied in part. The remaining motions will be granted, with modification. separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 12 A
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