Marks v. Bauer

Background

Ethan Daniel Marks brought this civil-rights lawsuit under 42 U.S.C. § 1983, alleging violations of the Fourth and Fourteenth Amendments. The operative complaint names Benjamin M. Bauer, acting in his individual capacity as a Minneapolis police officer. Marks alleges that on May 28, 2020, Bauer fired a 40-millimeter less-lethal round loaded with pepper spray into Marks’s face at point-blank range, causing severe and permanent injuries, including probably the total loss of one eye.

The case had been in discovery since April 16, 2021. The original scheduling order required fact discovery to end on January 3, 2022; expert discovery on June 30, 2022; non-dispositive motions by January 17, 2022; dispositive motions by August 31, 2022; and the case to be ready for trial on October 29, 2022.

Motion and arguments

Marks moved under Federal Rule of Civil Procedure 16(b) and the District of Minnesota’s Local Rule 16.3 to add 90 days to all deadlines. He argued that Bauer had caused unnecessary delays in scheduling depositions. Bauer opposed the motion, arguing that Marks had not diligently prosecuted the case. Bauer also argued that extensions in other cases involving Minneapolis police officers could cause several trials to occur close together, making trial preparation and staffing more difficult.

Rule 16(b)(4) allows a scheduling order to be changed only for “good cause” and with the judge’s consent. The court explained that diligence is the primary measure of good cause, but that it could also consider prejudice, the explanation for the requested change, the importance of the change, whether reasonable diligence would have been enough to meet the deadlines, and whether the other side’s actions caused the need for the change.

Court’s analysis

The court criticized both sides’ lawyers for failing to meet and confer cooperatively before filing the motion. Their filings included extensive accusations about the other side’s conduct and emails that the court viewed as lacking the professionalism needed to resolve discovery disputes efficiently.

The court found some evidence of Marks’s diligence. After Bauer was identified, Marks amended the complaint, served initial discovery, received Bauer’s responses, and began scheduling depositions within a few weeks of receiving those responses. The court also found it troubling that Marks’s counsel did not promptly correct the court’s mistaken understanding that Bauer had not been identified until July 2021. The court stated that Bauer had actually been identified on May 20, 2021.

The court rejected Bauer’s claimed prejudice based on extensions being sought in other cases. It explained that legally relevant prejudice must arise from the case before the court, not from effects on other litigation. The court characterized the case as serious, found some diligence by Marks, and attributed the scheduling difficulties equally to both sides.

Ruling and revised deadlines

The court concluded that the requested 90-day extension was not justified because Marks sought the extension mainly to complete depositions, and even the 11 depositions remaining under the scheduling order should not require 90 days. The court therefore extended the deadlines by 45 days and stated that it did not contemplate granting further extensions.

The revised deadlines were:

- Fact discovery: February 17, 2022 - Expert discovery: June 30, 2022 - Non-dispositive motions: March 3, 2022 - Dispositive motions: August 31, 2022 - Trial-ready date: October 29, 2022

The court ordered the parties to cooperate in scheduling the depositions, disclose the identities of proposed deponents when needed for scheduling, and remain flexible and available so the depositions could be completed on time. The court granted in part and denied in part Marks’s motion to amend the pretrial scheduling order.