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Oliveira-Coutinho v. Frakes

United States District Court, D. Nebraska

February 15, 2018

JOSE OLIVEIRA-COUTINHO, Plaintiff,
v.
SCOTT FRAKES, Director of Nebraska Dept of Correctional Services, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Six 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.)

         For the 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).

         Plaintiff 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.

         In 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.[1]

         Finally, 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.

         Accordingly, IT IS ORDERED:

1. Plaintiff's Motions for Limited Interrogatories and Request for Admissions (Filing Nos. 74, 75, 76, 77, 78, 79) are denied;
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' ...

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