Judges Second Order of 1/27/95

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

ORDER

The Court is in receipt of the Plaintiffs' "Motion for leave to File Out of Time Plaintiffs' Response to the United States' Motion to Dismiss." As the Plaintiffs acknowledge, the Court has already granted one extension of time but, in the interests of justice, the Court shall again grant the Plaintiffs' Motion. The Plaintiffs shall thus file their response to the Defendants'M otion to Dismiss on or before 4:00 p.m. on February 3, 1994, and the Defendants may file any reply thereto on or before 4:00 p.m. on February 9, 1995.

The Court is also in receipt of the Plaintiffs' "Motion for Rule 11 Sanctions or Other Dlsciplinary Action or, alternatively, to Dismiss this Action as Frivolous." The Court shall deny the Plaintiffs' Motion at this time, without prejudice to the right of the Plaintiff to renew the same after the Court has had an opportunity to consider the Defendants' Motion to Dismiss and the Plaintiffs' Opposition thereto or, alternatively, at the end of the proceedings in this case.

Finally, the Court is in receipt of the Plaintiffs' "Motion to

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Take Discovery by Other than Stenographic Means" and the Defendants' "Motion for Stay of Discovery Pending Resolution of the Individual Defendants' Motion to Dismiss." Under the applicable law, the Defendants are entitled to the requested stay. "Where public official defendants invoking an immunity from suit are involved . . '[d]iscovery is itself one of the burdens from which defendants are sheltered by the immunity doctrine.'" Martin v. Malhoyt, 830 F.2d 237, 256-57 (D.C. Cir. 1987) (quoting Martin v. MetroDolitan Police Dep't, 812 F.2d 1425, 1430 (D.C. Cir.), vacated in part, 817 F.2d 144 (D.C. vacated Dart reinstated, 824 F.2d 1240 (D.C. Cir. 1987)). Accordingly, the Defendants' Motion shall be granted.

In their Motion to Take Discovery by Other than Stenographic Means, the Plaintiffs request permission to take testimony by video and audio tape, pursuant to Fed. R. Civ. P. 30(b)(4), and seek use of a room in the Courthouse in which to conduct any depositions. The Defendants point out that, under Rule 30(b) (4), depositions must be taken before an officer appointed or designated under Rule 28, i.e., "before an officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending," unless otherwise agreed to by the parties. Fed. R. Civ. P. 28.

Because the Court finds that the Defendants are entitled to a stay of discovery pending resolution of their Motion to Dismiss, the Court shall defer ruling on the Plaintiffs' Motion to Take

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Discovery by Other Than Stenographic Means until the Motion to Dismiss is resolved. The Court appreciates that the Plaintiffs are anxious to conduct discovery, but the Court is obliged to follow the law affording the Defendants a stay of discovery under these circumstances. However, once the Motion to Dismiss becomes ripe (a date postponed by virtue of the Plaintiffs' Motions for extension of time), the Court shall rule on the same as soon as the business of the Court permits. Upon resolution of the Motion to dismiss, the Court shall establish an expedited schedule for discovery and set a hearing date as soon thereafter as reasonably possible. The Court shares the Plaintiffs wish to resolve this matter quickly, but the Court wishes to do so in a just manner that is consistent with the law and fair to both parties.

Accordingly, it is, by the Court, this 27th day of January, 1995,

ORDERED that the Plaintiffs' Motion for Leave to File Out of Time Plaintiffs' Response to the United States' Motion to Dismiss shall be, and hereby is, GRANTED, as hereinafter provided; and it is

FURTHER ORDERED that the Plaintiffs shall file their Opposition to the Defendants' Motion to Dismiss on or before 4:00 p.m. on February 3, 1994, and the Defendants shall file any reply thereto on or before 4:00 p.m. on February 9, 1995; and it is

FURTHER ORDERED that the Plaintiffs' Motion for Rule 11 Sanctions or Other Disciplinary Action or, alternatively, to Dismiss this Action as Frivolous shall be, and hereby is, DENIED,

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without prejudice to the right of the Plaintiff to renew the same after the Court has had an opportunity to consider the Defendants' Motion to Dismiss and the Plaintiffs' Opposition thereto or, alternatively, at the end of the proceedings in this case; and it is

FURTHER ORDERED that the Plaintiffs' Motion to Take Discovery by Other than Stgnographic Means shall be, and hereby is, STAYED, pending resolution of the Defendants' Motion/to dismiss.


____________________________
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE