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Mary F. Cunningham v. St. Bonaventure University and Its Franciscan Institute

April 6, 2011

MARY F. CUNNINGHAM, PLAINTIFF,
v.
ST. BONAVENTURE UNIVERSITY AND ITS FRANCISCAN INSTITUTE, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

By order entered on November 16, 2010 (Item 65), this court directed the parties to engage in good-faith efforts to afford plaintiff (a resident of Rockford, Ill., without the means to travel to the Western District of New York) the opportunity to have her deposition taken by telephone. The court denied defendant St. Bonaventure University's motion pursuant to Rule 41(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to prosecute, without prejudice to renew the motion upon a showing that the efforts to accomplish the telephone deposition proved unproductive. The court also advised plaintiff that it was her responsibility "to make arrangements to have an individual qualified to take oaths in Illinois (such as a Notary Public) available at the appropriate time and place to administer the oath required by Fed. R. Civ. P. 28(a)," id., and "that her failure to cooperate with the telephone deposition process contemplated by [the] order, or to otherwise refrain from conduct causing further unreasonable delay in the proceedings, will be considered as grounds for immediate dismissal of the action, in its entirety and on the merits, for failure to prosecute." Id. at p. 12; Cunningham v. St. Bonaventure University and its Franciscan Institute, 2010 WL 4628535, at *6-7 (W.D.N.Y. Nov. 16, 2010).

On December 20, 2010, in accordance with the court's order, defense counsel served on plaintiff (and filed with the court for reference) a proposed schedule and procedural framework for taking plaintiff's deposition by telephone, setting forth the following set of instructions:

1. The Plaintiff . . . will be present in the State of Illinois, County of Winnebago, at or near the City of Rockford, before a Notary Public of the State of Illinois or some other officer authorized under the laws of the State of Illinois to administer oaths.

2. At the Plaintiff's location will be a telephone equipped with a speaker to allow the Plaintiff to hear the questions propounded via (hands free) speaker phone.

3. Plaintiff will be located in a room that has or is immediately adjacent to a facsimile machine so the facsimile machine is regularly and immediately available to the Plaintiff to receive and/or send documents.

4. No later than seven (7) days prior to the deposition, the Plaintiff shall provide, in writing, to the Defendant the following information:

a. the location at which she will be present for the deposition including the street address;

b. the phone number at which she will be available for the deposition;

c. the number for the facsimile machine to which plaintiff will have regular and immediate access during the deposition;

d. the identity of the Notary Public or other officer authorized to administer oaths including the individual's name, address and telephone number.

Item 67, pp.1-2. The deposition was scheduled for January 25, 2011, at 10:00 a.m. EST, at which time defense counsel would be present at her office in Buffalo, along with a stenographer to record the deposition, in a room equipped with a speaker phone and fax machine. Id. at p. 2.

On January 19, 2011, plaintiff sent defense counsel an email in which she advised that she had arranged for the use of a conference room at the federal courthouse in Rockford for the day of January 25th, with limited access to a fax machine in the Clerk's office nearby at the cost of fifty cents per page sent or received. See Item 71, Ex. C. She further advised that she had been unable to make arrangements to have a person qualified to take oaths in Illinois available for the deposition. Id.; see also Ex. D.

On January 25, 2011, at 10:01 a.m. EST, defense counsel Melinda G. Disare contacted plaintiff by telephone at the number provided for the conference room in the Rockford federal courthouse. Plaintiff advised counsel that she still had not been able to make arrangements to have a person authorized to administer oaths present for the taking of her deposition testimony, as required by this court's November 16, 2010 order and the Federal Rules of Civil Procedure. The following conversation was recorded by the stenographer present in defense counsel's office:

MS. CUNNINGHAM: I asked [the N.D.Ill. Deputy Clerk of Court] if one of the judges would swear me in as a courtesy to Judge Curtin and she said probably not. She was going to contact their ...


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