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Ward v. Leclaire

January 15, 2008

KENNETH WARD, PLAINTIFF, -
v.
LUCIEN LECLAIRE, JR., ACTING COMMISSIONER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece, U. S. Magistrate Judge

ORDER

Presently before the Court is a Motion to Vacate the Notice of Deposition (Dkt. No. 49), a Motion for a Court Conference (Dkt. No. 49), a Motion to Compel Discovery (Dkt. No. 49), and a Motion to Amend the Complaint (Dkt. No. 51), all filed by pro se Plaintiff Kenneth Ward.*fn1 Defendants have opposed each Motion. Dkt. Nos. 52-53.

A. Background

Plaintiff initiated this action on January 8, 2007, by filing a civil rights Complaint with the Clerk of the Court (Dkt. No. 1); the Complaint was ordered served on February 5, 2007 (Dkt. No. 7). Accompanying Plaintiff's Complaint was a Motion for a Preliminary Injunction. On March 19, 2007, Defendants filed an Answer to the Complaint and a Response in Opposition to Plaintiff's Motion for a Preliminary Injunction. Dkt. Nos. 20-21. On April 6, 2007, Plaintiff filed a Motion for a Temporary Restraining Order. Dkt. No. 23. The Motion for a Temporary Restraining Order and Motion for Preliminary Injunction were denied by Order, dated May 24, 2007. Dkt. No. 31.

On June 8, 2007, Defendants requested leave to take Plaintiff's deposition, which was granted by this Court. Dkt. Nos. 34-35. Thereafter, Plaintiff filed a Motion to Vacate the Order granting Defendants leave to depose him (Dkt. No. 36); Plaintiff's request was denied on September 10, 2007 (Dkt. No. 43). Thereafter, on November 5, 2007, Plaintiff filed his Motion to Vacate the Notice of Deposition, Motion for a Court Conference, and Motion to Compel Discovery. Dkt. No. 49. On November 8, 2007, Plaintiff filed his Motion to Amend the Complaint (Dkt. No. 51) after having an amended complaint and a Motion to Amend the Complaint stricken from the Court's docket for failure to comply with the Federal Rules of Civil Procedure and the Local Rules (Dkt. Nos. 46 & 48).

B. Motion to Compel Discovery

The Court will first address the Motion to Compel Discovery as Plaintiff has intertwined Defendants' alleged failure to cooperate in discovery in the other Motions pending before this Court.

Plaintiff alleges that the Defendants have failed to make the initial disclosures as required by Rule 26(a)(1) of the Federal Rules of Civil Procedure. Defendants state that such initial disclosure provisions do not apply to this case and, therefore Defendants's counsel "returned the plaintiff's demands without prejudice and await for production under the Federal Rules of Civil Procedure 34." Dkt. No. 53. A copy of the letter returning the demands was not annexed to the Defendants' Response to this Motion. Thus, the Court is unable to determine whether the basis for the rejection was explained to Plaintiff, and whether this prong of the Motion was asserted due to lack of information or for dilatory reasons.

Nevertheless, it is undisputed that Plaintiff is in the custody of the New York State Department of Correctional Services and is proceeding with this action pro se. Thus, it is beyond cavil that Rule 26(a)(1)(B)(iv)*fn2 expressly excludes this case from provisions requiring the mandatory disclosures. Accordingly, Plaintiff's Motion to Compel is without merit and must be denied.

C. Motion to Vacate Defendants' Notice of Deposition

Plaintiff objects to Defendants' Notice of Deposition due to Defendants' failure to fully comply with Rule 30(b)(2) of the Federal Rules of Civil Procedure.*fn3 More specifically, Plaintiff objects to the fact that the Notice of Deposition fails to state the method by which the testimony will be recorded. See Dkt. No. 49.

Defendants oppose the Motion and state that the "Notice of Deposition is routine, accurate and is in compliance with the order signed by your honor on June 11, 2007 (Docket #35)." Dkt. No. 53. In addition, Defendants note that Plaintiff already sought to vacate the Order that granted them leave to serve the Notice of Deposition, and that they served the Notice in a timely fashion. Id.

The requirements for a proper Notice of Deposition are established by the Federal Rules of Civil Procedure. Nothing in this Court's June 11, 2007 Order granted leave to Defendants to serve a Notice of Deposition that did not comply with the Federal Rules. Accordingly, Plaintiff is correct in his assertion with respect to the required content of the Notice of Deposition. Thus, any future Notice of Deposition issued by Defendants in this action shall comply with the Federal Rules.*fn4

Given the passage of time, the request to vacate the Notice of Deposition will be denied as moot.*fn5 Moreover, Plaintiff is advised that he has an ongoing obligation to resolve minor disputes, such as this, with Defendants' counsel prior to seeking the intervention of this Court. See N.D.N.Y.L.R. 7.1(b)(2) and 7.1(d). Plaintiff has offered the Court no evidence that he made any attempt to resolve this dispute by way of written correspondence or otherwise. Plaintiff is advised that the Court will require proof of good faith ...


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