Opinion
Civil No. 05-3056.
July 19, 2006
ORDER
Now on this 19th day of July, 2006, the above referenced matter comes on for this Court's consideration of Plaintiffs' Crystal Leann "Clarida" Fitzwater, Jerald W. Fitzwater, and Alton Louis Vaughn, Sr. Motion to Recall, Set Aside and Vacate June 2, 2006 Order (document #128). The Court, being well and sufficiently advised, finds and orders as follows: 1. The plaintiffs initiated this action on September 22, 2005. An amended complaint was filed herein on November 9, 2005, naming as defendants Johnny L. Nichols, John Putman, Randel Earl Clarida, Danny Hickman, Richard Bogue, Linda Adams, and Zeola Yeager.
2. Following various motions filed by the parties, a Civil Trial Scheduling Order was issued by this Court on May 9, 2006. The scheduling order sets the case for trial by jury during the week of December 4, 2006, and directs that discovery be completed no later than September 5, 2006.
3. On May 23, 2006, a pleading entitled Plaintiffs' Oppositions and Objections to Defendants' Notices of Deposition and Plaintiffs' Notice of Availability (document #123) was filed with the Court. In the pleading, the plaintiffs objected to certain Notices of Depositions propounded by the defendants.
The Court, after reviewing the pleadings of the parties and the Notices of Depositions in question, found that "they provided `reasonable notice' and specified a reasonable, public location in the city in which the action is pending." (Order, June 2, 2006, document #127) The plaintiffs' challenge to the Notices of Depositions was rejected, and the Court found that the defendants were entitled to conduct the depositions noticed for June 6 and 7. (document #127)
4. In clear violation of the Court's said Order, the three named plaintiffs did not show up for the depositions but, instead, filed the instant motion to "recall, set aside and vacate" this Court's June 2 Order.
In the motion, the plaintiffs essentially restate the arguments set forth in their motion to quash which the Court had denied and complain that the defendants did not sufficiently work with them when scheduling the time and place for the depositions.
5. The defendants have filed responses to the plaintiffs' instant motion. They object to the plaintiffs' attempt to reargue and set aside this Court's order and argue that the plaintiffs' complaint should be dismissed due to the plaintiffs' failure to comply with the required discovery and this Court's order.
6. Plaintiffs have replied to the defendants' responses — again "rehashing" their original arguments which the Court has already rejected in its June 2, 2006, Order.
7. Rule 60 of the Federal Rules of Civil Procedure provides for relief from an order or judgment under certain circumstances. None of those circumstances apply in this situation. This Rule cannot be properly used to simply restate arguments which the Court has already rejected and the Court will not permit plaintiffs to do that in this case. Accordingly, the Court finds that plaintiffs' pleadings offer neither law nor fact requiring departure from the Court's June 2, 2006 Order, and will, therefore, deny the Plaintiffs' Crystal Leann "Clarida" Fitzwater, Jerald W. Fitzwater, and Alton Louis Vaughn, Sr. Motion to Recall, Set Aside and Vacate June 2, 2006 Order (document #128).
8. A party's failure to comply or cooperate in discovery is discussed in Rule 37 of the Federal Rules of Civil Procedure. Rule 37 provides for sanctions due to the failure to cooperate in discovery, which includes the dismissal of an action. Fed.R.Civ.P. 37.
The Court warns the plaintiffs that, in the future, failure to comply or cooperate in discovery will likely be met with such sanctions under Rule 37.
IT IS, THEREFORE, ORDERED that Plaintiffs' Crystal Leann "Clarida" Fitzwater, Jerald W. Fitzwater, and Alton Louis Vaughn, Sr. Motion to Recall, Set Aside and Vacate June 2, 2006 Order (document #128) should be, and it hereby is, denied.
IT IS SO ORDERED.