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Accurso v. Cooper Power Systems

June 19, 2008

SUTTON D. ACCURSO, PLAINTIFF,
v.
COOPER POWER SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott

Order

Defendant has filed a motion to compel non-party witness Norman Coombes to appear at a deposition and extension of the discovery and subsequent deadlines for dispositive motions (Docket No. 15*fn1 ). Defendant was ordered to serve a copy of its motion and the Order setting forth the briefing schedule upon non-party witness Coombes, with proof of service filed with this Court, by June 13, 2008 (Docket No. 17), see Fed. R. Civ. P. 37(a)(1) (a motion to compel discovery is on notice to other parties "and all affected persons"). Responses were to be filed on or before June 23, 2008, and any reply was to be filed on or before June 30, 2008, and the motion then would be deemed submitted without oral argument unless determined necessary by the Court upon review of the papers (id.). Defendant, in its letter to Chambers notifying the Court of its motion, indicated that plaintiff is willing to join this motion (letter of Mark Moldenhauer, Esq., to Chambers, May 30, 2008, at 1; see also letter of Richard Wyssling, Esq., to Chambers, June 12, 2008). In opposition, Coombes has not submitted any response. Rather than await reply submissions, given the filings by defendant, the Court now takes up its motion. The Order setting forth this briefing schedule also granted defendant's motion for extension of the discovery deadline (solely for the purpose of conducting Coombes' deposition) and the subsequent deadlines, with the deadlines in the Amended Scheduling Order being stayed pending resolution of this motion to compel (id.).

BACKGROUND

In this is employment discrimination action, plaintiff alleges that her employer accused her of falsifying time cards and suspended her while male employees who engaged in similar activities were not suspended or disciplined (Docket No. 1, Compl. ¶¶ 7-20). She alleges gender discrimination claims under Title VII and the New York State Human Rights Law (id. ¶¶ 21-28). Defendant answered (Docket No. 2). The Court held a Scheduling Conference (Docket No. 10) and issued a Scheduling Order (Docket No. 11), which was amended (Docket No. 14). Under the amended Scheduling Order (Docket No. 14), discovery was to be completed by May 30, 2008; dispositive motions were due by June 30, 2008; referral to mediation was to cease by July 15, 2008; pretrial statements (if no motions are filed) were due by August 15, 2008. That Order also set forth the final pretrial conference date before Judge William Skretny and when the jury trial was scheduled to begin (id.).

In discovery, plaintiff testified that she relied upon statements made by Norman Coombes to justify her conduct that resulted in her suspension and eventual termination (Docket No. 16, Def. Atty. Affirm. ¶ 8). Defendant then attempted to subpoena Coombes for a deposition on May 27, 2008, and made several attempts to serve the subpoena upon him personally and eventually purported to serve him by leave and mail (id. ¶¶ 3, 4, 6, Ex. A), with the requisite witness fees provided to Coombes (id. ¶ 5). See Fed. R. Civ. P. 45(b)(1). Coombes did not contact defense counsel and did not appear at the May 27, 2008, deposition (id. ¶ 7). Defendant now moves to compel Coombes' examination, scheduled for June 13, 2008 (Docket No. 15, Notice of Motion). No motion to quash this subpoena has been filed, cf. Fed. R. Civ. P. 45(c)(3).

Defendant also seeks to extend the discovery deadline of May 30, 2008 (Docket No. 14), solely to allow for the deposition of Coombes and the extension of the dispositive motion deadline (June 30, 2008) as well (Docket No. 16, Def. Atty. Affirm. ¶¶ 9-10, 2). Defendant proposes the dispositive motion deadline be extended to July 18, 2008 (id. ¶ 10).

Since defendant did not indicate that it attempted to serve this motion upon Coombes, the Order setting forth the briefing schedule ordered service of the motion and that Order upon Coombes with proof of its service (Docket No. 17), see Fed. R. Civ. P. 37(a)(1) (a motion to compel discovery is on notice to other parties "and all affected persons"); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2465, at 82 & n.4 (Civil 2d ed. 1994) (minimal due process requires adequate notice and opportunity to be heard before subpoena sanction of civil contempt can be entered). Defendant responded by filing two affidavits from its process server. First is an "Affidavit of Service Affix to Door," stating the attempts to delivery the moving papers and Order to Coombes at an address in Olean, New York, and mailing of these papers to that same address. Second is an Affidavit of Circumstances, outlining the attempts in June 10-12, 2008, to locate Coombes and to deliver these papers to him (Docket No. 18).

DISCUSSION

I. Compel Testimony of Non-Party Witness

Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an Order compelling discovery, with that motion including a certification that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A). Since defendant subpoenaed Coombes to testify, it has moved under Rule 45. That rule has provision for a motion to compel production of subpoenaed materials upon an objection to their production, Fed. R. Civ. P. 45(c)(B)(i), but there appears to be no general provision to compel testimony where no materials are sought or in the absence of a timely objection. Failure to obey a subpoena is subject to civil contempt*fn2 if the subpoena has been served and the failure to obey is not adequately explained, Fed. R. Civ. P. 45(e). Thus, for this motion, the Court will address the initial issue of compelling Coombes' testimony. To address this issue, it must be determined, first, if defendant served Coombes and, if so, whether he has an adequate excuse for failing to appear at the scheduled deposition.

A. Was Coombes Properly Served?

Defendant attempted to personally deliver the subpoena (and later its motion and the Order setting forth the briefing schedule) upon Coombes, ultimately leaving copies of these documents and mailing them to Coombes' purported last known address in Olean (see Docket No. 16, Def. Atty. Affirm. ¶¶ 3-4, 5-6; Docket No. 18). Defendant contends that it served the subpoena pursuant to Fed. R. Civ. P. 4(e)(1) and New York Civil Practice Law and Rules 308(4) by leaving and mailing the subpoena (Docket No. 16, Def. Atty. Affirm. ¶ 4).

Federal Rule 4(e)(1) applies to service of summonses to persons within the judicial district, and not to subpoenas. The New York CPLR 308(4) also applies to service of summonses, but only in New York State proceedings and not federal court actions; cf. N.Y. CPLR 2303 (a ...


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