UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
| JAMES R. BLACKSTON, BRADLEY W. BARBER Plaintiffs, vs. STATE OF ALABAMA, et. al., Defendants. |
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Case No.: 99-A-295-N |
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OBJECTIONS TO THE MAGISTRATE JUDGE'S SCHEDULING ORDER, FILED ON 13 MARCH 2002, DOC. #121
Comes now Plaintiffs Blackston and Barber and objects to the Magistrate Judge's Scheduling Order, (Doc. #121) filed on 13 March 2002 and submits the following: 1. The plaintiffs appreciate the Court has clarified the issues in Orders filed on 13 March 2002, (Doc. #117 (1) and #120) and in separate Orders, has directed the defendants and non-parties to comply with discovery requests, however the 13 March 2002 Scheduling Order (2) (Doc. #121) has some glaring problems. I. DISPOSITIVE MOTIONS 2. Section 1 of the 13 March 2002, Scheduling Order states, "A pretrial hearing of this cause is scheduled for 4 October 2002. 3. Section 3 of the 13 March 2002, Scheduling Order states that, "Any dispositive motions, i.e., motions to dismiss or motions for summary judgment, shall be fled no later than 26 July 2002. 4. Section 2 of the U.S. District Court, Middle District's UNIFORM SCHEDULING ORDER states that any dispositive motions, i.e. motions to dismiss or motions for summary judgment, shall be filed no later than (90) DAYS prior to the pre-trial hearing. 5. Complying with the U.S. District Court, Middle District's UNIFORM SCHEDULING ORDER the deadline for filing any dispositive motions should be 7 July 2002. 6. The Magistrate Judge's 13 March 2002, Scheduling Order's deadline for filing dispositive motions on 26 July 2002 does not conform to the U.S. District Court, Middle District's UNIFORM SCHEDULING ORDER for filing dispositive motions no later than (90) DAYS prior to the pretrial hearing. Uniform means,
"Conforming to one rule, mode, pattern, or unvarying standard; not different at different times or places; applicable to all places or divisions of a country. Equable; applying alike to all within a class; sameness. A statute is general and uniform in its operation when it operates equally upon all persons who are brought within the relations and circumstances provided for; when all persons under the same conditions and in the same circumstances are treated alike, and classification is reasonable and naturally inherent in the subject-mater." BLACKS LAW DICTIONARY, 6th Ed. 1990, pg. 1530.
7. If uniform means uniform, then why are the defendants once again given preferential treatment and extra time to file dispositive motions? 8. The plaintiffs, as pro se, are forced to do more than any attorney just to protect their due process rights to prosecute their case. 9. The Magistrate Judge still shows favoritism to the defendants and bias against the plaintiffs' rights. 10. The Magistrate Judge's 13 March 2002, Scheduling Order violates the spirt of Court Order, (Doc. #92), wherein the Court DIRECTED the Magistrate Judge to take the appropriate steps to enter a scheduling order in this case. (See Order, Doc. #92, pg1, ¶1) 11. By delaying the defendants' time for dispositive motions, the Magistrate Judge gives the defendants an extra nineteen (19) days to file dispositive motions. (3) 12. Will all defendants in every case in the Middle District be given extra time to file dispositive motions and will all plaintiffs in the Middle District have their time shorten to respond to any dispositive motion in violation of the plaintiffs' due process rights? 13. The 13 March 2002, Scheduling Order deprives the plaintiffs of due process and equal treatment as other similarly situated litigants in the U.S. District Court, Middle District of Alabama and places an unfair disadvantage upon the plaintiffs in their ability to respond to any dispositive motions by cutting short the time to respond to any dispositive motion. II. MOTIONS TO AMEND 14. The 13 March 2002 Scheduling Order fails to give the plaintiffs an opportunity to amend the pleadings and to add parties in accordance with the Middle District Court's UNIFORM SCHEDULING ORDER, Section 4. (4) 15. The Magistrate Judge placed strong emphasis on the UNIFORM SCHEDULING ORDER, emphasizing the fact that a "standard scheduling order" applies to ALL litigants in the U.S. District Court, Middle District of Alabama. (See Order, Doc. #121, pg1, n1) 16. The 13 March 2002 Scheduling Order deprives the plaintiffs due process in amending their complaint to conform to discovery. The plaintiffs will be denied a fair opportunity to amend their complaint or add parties under Fed.R.Civ.Proc. Rule 15(a) to set forth transactions, occurrences, or events that could have been included in the original pleading, but were omitted for one reason or another. 17. The defendants have filed numerous motions to dismiss. If the defendants file another frivolous motion to dismiss, the 13 March 2002 Scheduling Order will prevent the plaintiffs from amending their complaint accordingly. Leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). While a decision whether to grant leave to amend is clearly within the discretion of the district court, a justifying reason must be apparent for denial of a motion to amend. Nolin v. Douglas County, 903 F.2d 1546, 1550 (11th Cir.1990). 989 F.2d 1129, 25 Fed. R. Serv. 3d (Callaghan) 973 MOORE V. BAKER (11th Cir. 1993) 7 Fla. Law W. Fed. C 275, 1993 U.S. App. Lexis 9943
18. The Magistrate Judge, in her 13 March 2002 Scheduling Order, violates the plaintiffs' due process rights and gives the defendants an unfair advantage over the plaintiffs i.e. disallowing the plaintiffs a fair opportunity to amend their complaint to conform to discovery, allows the defendants to destroy the plaintiffs' case by a simple pretrial motion in limine and/or leaves the plaintiffs unable to prove documentary evidence and obtain depositions in a timely manner.
"The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman, 371 U.S. at 181-82, 83 S. Ct. at 230. Thus, courts routinely grant leave to parties to amend their pleadings under Rule 15(a) to set forth transactions, occurrences, or events that could have been included in the original pleading, but were omitted for one reason or another. 13 Fla. Law W. Fed. C, 755 HARRIS V. GARNER (11th Cir. 2000) 2000 U.S. App. Lexis 15045
WHEREFORE PREMISES CONSIDERED the plaintiffs respectfully request this Honorable Court to: 1. Amend the Scheduling Order filed on 13 March 2002 to set the time for dispositive motions to conform to the ninety (90) days requirement in the U.S. District Court, Middle District's UNIFORM SCHEDULING ORDER. Said time should read to wit: "Any dispositive motions, i.e., motions to dismiss or motions for summary judgment, shall be filed no later than 7 July 2002. 2. Amend the Scheduling Order filed on 13 March 2002 to conform to the U.S. District Court, Middle District's UNIFORM SCHEDULING ORDER to include a provision "to amend and to add parties" in accordance with Section 4 of the U.S. District Court, Middle District's UNIFORM SCHEDULING ORDER. Respectfully submitted on 25 March 2002
________________________ James R. Blackston
Bradley W. Barber 1. The court entered a final ruling on the defendants' motion [to dismiss] on 3 July 2000 (Doc. #64). (See ORDER, Doc. #117, pg1, ¶2) 2. Footnote #1 to the Court's Scheduling Order states, "'THE COURT HAS ADOPTED A UNIFORM SCHEDULING ORDER. Please read this order carefully. The Court has substantially modified its standard scheduling order to impose new responsibilities and deadlines on parties to litigation and to create a uniform scheduling order for use by the judges of this court. These deadlines and responsibilities may not be changed without leave of the court. All parties are expected to comply with this order in a timely manner, without unnecessary requests for extensions of time." 3. The plaintiffs, even though pro se, are entitled to be treated with fairness and equity in conformance to Federal Rules of Civil Procedure in all pretrial matters and should not be targeted for abuse and subsequent denial of due process by unfair scheduling orders. 4. Section 4, of the Middle District's UNIFORM SCHEDULING ORDER states, "Any motions to amend the pleadings and to add parties shall be filed on or before _____________________,2001." [ Home]---[Search]---[Email]---[Access Page]---[Child Support] |