United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
days after the court denied Plaintiff's Motion for
Limited Discovery (Filing No. 70), Plaintiff filed
six more Motions for Limited Interrogatories and Request for
Admissions (Filing Nos. 74-79). The motions
request limited discovery “in order to provide the
plaintiff an opportunity to adequately and meaningfully reply
to Defendants' Brief In Support of Motion for Summary
Judgment.” (Filing No. 74.)
same reasons stated in the court's prior order (Filing
No. 73) denying Plaintiff's previous Motion for
Limited Discovery (Filing No. 70), Plaintiff's
additional Motions for Limited Interrogatories and Request
for Admissions (Filing Nos. 74-79) will
also be denied because:
1. Plaintiff previously filed two Motions for Extensions of
Time (Filing Nos. 66, 68) within which to
respond to Defendants' Motion for Summary Judgment, which
were granted. (Filing No. 69.) Neither of
Plaintiff's prior Motions for Extension of Time asserted
that Plaintiff needed additional discovery in order to
respond to Defendants' Motion.
2. Plaintiff does not explain why the additional discovery he
now seeks could not have been requested before discovery
closed along with his other discovery requests. (See
Filing No. 41, Plaintiff's Motion for Discovery
dated June 15, 2017, requesting numerous documents dealing
with legal books available at Plaintiff's institution,
availability of interpreters and translations, and dozens of
administrative regulations and operational memoranda.)
3. Plaintiff has failed to show “by affidavit or
declaration that, for specified reasons, [he] cannot present
facts essential to justify its opposition.”
Fed.R.Civ.P. 56(d). In fact, Plaintiff has thoroughly
responded to Defendants' Motion for Summary Judgment with
a Reply (Filing No. 81), Objection (Filing No.
82), Affidavit (Filing No. 83), Statement
of Disputed Factual Issues (Filing No. 84), and a
186-page Index of Exhibits (Filing No. 86).
has also filed a Motion to Disqualify Defendants' Counsel
(Filing No. 72) because counsel “[t]estif[ied]
about facts”-thereby making counsel a witness-when
counsel filed an affidavit stating he is “competent to
testify to the matters set forth herein” and he made
the affidavit “upon [his] personal knowledge.”
(Filing No. 64-5.) The affidavit to which Plaintiff
refers is an affidavit from Defendants' counsel
presenting to the court a “true and correct copy”
of a document contained in the court file from one of
Plaintiff's cases in the Nebraska Supreme Court,
State v. Jose C. Oliveira-Coutinho (S-13-798). The
document shows that Plaintiff requested, and was granted, an
extension of time from the United States Supreme Court to
file a petition for a writ of certiorari in that case.
order to file this Nebraska court record with this court,
counsel was required to file an affidavit under Nebraska
Civil Rule 7.1(a)(2)(C), which provides in part:
“An affidavit must identify and authenticate any
documents offered as evidence. The affidavit must be made on
personal knowledge, set forth facts that would be admissible
in evidence, show affirmatively that the affiant is competent
to testify to the matters stated . . . .” See PW
Eagle, Inc. v. Schnase, 376 F.Supp.2d 945, 946 (D. Neb.
2005) (“The local rules require that documents used as
evidence to support or oppose a motion must be authenticated
by affidavit.”); Hillard v. Clarke, 245 F.R.D.
419, 420 (D. Neb. 2007) (same). Therefore, Plaintiff's
motion will be denied.
Plaintiff has filed an “Objection” (Filing No.
82) to Defendants' Motion for Summary Judgment
(Filing No. 63). Nebraska Civil Rule
7.1(b)(1)(A) prohibits the filing of an
“objection” to a motion. Rather, a party must
file a “brief that concisely states the reasons for
opposing the motion and cites to supporting authority.”
The court will treat Plaintiff's Objection as a Brief in
Opposition to Defendants' Motion for Summary Judgment.
IT IS ORDERED:
1. Plaintiff's Motions for Limited Interrogatories and
Request for Admissions (Filing Nos. 74, 75,
76, 77, 78, 79) are
2. Plaintiff's Motion to Disqualify Defendants'
Counsel (Filing No. 72) is denied; and
3. The Clerk of Court is directed to terminate
Plaintiff's “Objection” (Filing No.
82) as a pending motion and re-docket it as a Brief
in Opposition to Defendants' ...