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HANLIN v. MITCHELSON

December 5, 1985

HERMINE HANLIN, Plaintiff, v MARVIN MITCHELSON, Defendant


The opinion of the court was delivered by: LEISURE

This matter is before the Court on plaintiff's motion to compel further discovery, defendant's cross-motion for summary judgment and plaintiff's cross-motion to amend the complaint.

Plaintiff, Hermine Hanlin, has asserted a malpractice claim against defendant, Marvin Mitchelson, Esq., arising out of his legal representation of plaintiff in a prior arbitration proceeding. Plaintiff was the managing agent for a singing group, The Manhattans. After a dispute arose out of the partnership agreement between plaintiff and The Manhattans, plaintiff sued the group for breach of contract. Pursuant to the partnership agreement's arbitration clause *fn1" the matter was heard and decided by a panel of arbitrators from the American Arbitration Association. During the arbitration proceedings, a counterclaim was made to recover monies that Ms. Hanlin allegedly took from a joint bank account she had with a member of the group, Kenneth Kelly. Ms. Hanlin asserts in this case that Mr. Mitchelson negligently handled this part of the proceeding because he allegedly failed to object to the admission of testimony about this transaction.

 Plaintiff initially asserted three claims against Mr. Mitchelson: "intimidation" or intentional infliction of emotional distress, defamation and negligence, or legal malpractice. Defendant moved for summary judgment pursuant to

 Fed. R. Civ. P. 56, or alternatively, to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). By memorandum decision, Hon. David N. Edelstein, United States District Judge of this Court, granted defendant's Rule 12(b)(6) motion and dismissed both the "intimidation" and defamation claims. Judge Edelstein also granted defendant's summary judgment motion for all but one of plaintiff's malpractice allegations. Hanlin v. Mitchelson, No. 84 Civ. 2443, slip. op. at 2 (S.D.N.Y. Aug. 23, 1984). Judge Edelstein framed plaintiff's remaining claim in the following terms:

 Plaintiff alleges that at the arbitration defendant negligently failed to object to the counterclaim of one Kenneth Kelly for $26,000.00, on the ground that it was a "personal" matter beyond the scope of the arbitration agreement. The arbitration panel eventually ordered plaintiff to pay Mr. Kelly the sum of $26,750.00 . . . . If this claim was indeed a personal matter beyond the scope of the arbitration, defendant might be liable to plaintiff for not objecting to the panel's consideration of this claim. Defendant's memorandum conspicuously omits any response to this allegation.

 Id. This allegation of plaintiff's original complaint is the only claim still at issue in this case.

 Turning to the matter presently before the Court, the motion to compel discovery arose out of a deposition of defendant taken by plaintiff on December 20, 1984, beginning at 10:00 a.m. Defendant's counsel adjourned the deposition at 12:20 p.m. on the ground that the deposition had degenerated into harassment of his client. On December 21, 1984, plaintiff moved under Fed. R. Civ. P. 37 for an order compelling continuation of the deposition before a United States Magistrate. Defendant submitted papers in opposition to plaintiff's motion to compel and cross-moved for summary judgment dismissing plaintiff's remaining claim. Defendant's submission included a copy of Judge Edelstein's decision, a copy of the entire transcript of the December 20, 1984 deposition, copies of excerpts from the transcript of the arbitration hearing, and portions of "Claimant's Reply Brief" prepared and submitted by defendant as part of the arbitration proceedings. *fn2"

 Thereafter, on February 20, 1985, plaintiff moved pursuant to Fed. R. Civ. P. 15(a) for leave to serve an amended complaint. The proposed amended complaint alleges that defendant failed to appeal or confirm the arbitration award thereby allowing the state of limitations to expire.

 For the reasons presented below, plaintiff's motions to compel a second deposition and to amend the complaint are denied. Defendant's motion for summary judgment is granted and the complaint is dismissed.

 The Motion to Compel Discovery

 Consistent with Judge Edelstein's prior order, plaintiff was entitled to inquire into only one aspect of her contention that the defendant negligently represented her in his professional capacity. Specifically, this issue related to the arbitration panel's finding that Ms. Hanlin had to return approximately $26,000 to Kenneth Kelly, one of the group's members. A careful reading of the deposition transcript demonstrates that Ms. Hanlin had a full and fair opportunity to explore this issue with Mr. Mitchelson. The deposition transcript reveals that, although the questioning began in a good faith attempt to depose Mr. Mitchelson, the proceeding deteriorated into a vexatious, repetitive and haranguing inquisition beyond the scope of the issues in the case. After what appeared to have been an exhaustion of the $26,000 issue, plaintiff insisted on pursuing several unrelated issues, including why Mr. Mitchelson did not appeal the final arbitration decision and whether Mr. Mitchelson was unable to represent her adequately due to his purported bias about her alleged embezzlement of funds. Finally, when asked a question about the representation he provided, Mr. Mitchelson answered that he provided plaintiff with the best defense of which he was capable. Plaintiff stated that she agreed. Deposition Tr. at 41.

 My review of the deposition transcript leads me to conclude that resumption of the deposition would be inefficacious. Plaintiff's motion is therefore denied.

 In denying this motion, however, the Court must consider whether defendant's counsel proceeded in a proper and orderly fashion when he adjourned the deposition. In essence, what is before the Court is a motion by defendant to terminate the examination under Fed. R. Civ. P. 30(d). Rule 30(d) provides:

 
Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending . . . may order the officer conducting the examination to cease forthwith from taking the deposition . . . . If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. ...

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