The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's motion to compel plaintiff's deposition (Docket No. 33*fn1 ). Responses were due by September 26, 2012, and any reply by October 3, 2012, and this motion was deemed submitted (without oral argument) on October 3, 2012 (Docket No. 36).
This is a Fair Debt Collection Practices Act action (see Docket No. 1, Compl.). Defendant answer and asserted a counterclaim (Docket No. 5). After referral of this action to the undersigned (see Docket No. 7), plaintiff moved to dismiss the counterclaim (Docket No. 10), which was granted (Docket No. 32; see also Docket No. 22, Report & Recommendation (recommending granting motion)). Meanwhile, this Court entered a Scheduling Order (Docket No. 19), in which motions to compel discovery were due by September 28, 2012, discovery was to be completed by October 9, 2012, and dispositive motions were due by November 9, 2012.
Ordinarily, the counsel for a party is not pertinent to a case. But here, the motion to compel is impacted by the change in counsel. Plaintiff initially was (and is) represented by Craig Kimmel of Kimmel & Silverman, P.C. (see Docket No. 1, Compl.), with an office in Ambler, Pennsylvania. But according to the Court Clerk's records, Kimmel is listed as having an address in Buffalo and is so indicated on the docket for this case. Other attorneys from the Ambler office filed appearances and moved for leave to appear pro hac vice on behalf of plaintiff (Docket Nos. 12 (Jacob Ginsburg pro hac vice application), 27 (Amy Bennecoff pro hac vice application); see also Docket Nos. 15 (Order granting Ginsburg pro hac vice status in this case), 28 (Order granting Bennecoff pro hac vice status in this case)). According to plaintiff's counsel, Ginsburg later left the firm, which led to Bennecoff filing her pro hac vice application and appearance (Docket No. 37, Pl. Memo. at 3; Docket No. 38, Pl. Atty. Decl. ¶ 8).
Defendant's Motion to Compel
Defendant noticed plaintiff's deposition for September 4, 2012, serving that notice on August 21, 2012 (Docket No. 34, Def. Atty. Decl. ¶ 4, Ex. A), e-mailing a copy of the notice on August 21, 2012 (see id., Ex. B), to plaintiff's counsel of record, Craig Kimmel, Jacob Ginsburg, and Amy Bennecoff (id., Exs. A, B). On August 30, 2012, defense counsel sent an e-mail to plaintiff's counsel, Jacob Ginsburg and Amy Bennecoff, confirming the September 4 deposition date (id. ¶ 5, Ex. B). Defense counsel received a response from paralegal Pete Keltz (see id. Ex. F) who stated that Bennecoff was on maternity leave and that Ginsburg had left the firm and the deposition could not go forward as scheduled (id. ¶ 5, Ex. C). Keltz stated that a new attorney (Christopher Kelleher) would make an appearance and file a pro hac vice application but, as of defendant's motion, no such appearance or application was made (id.). Defense counsel agreed to adjourn the deposition to September 13, 2012, and served a second notice (id. ¶ 6, Ex. D). On September 4, defense counsel again e-mailed plaintiff's counsel, Bennecoff and Ginsburg (although informed that Ginsburg was no longer with the firm), to confirm the September 13, 2012, date (id. ¶ 7, Ex. E). In the e-mail exchange reproduced at Exhibit E, Keltz requested dates for plaintiff's deposition of defendant's corporate representatives (id., Ex. E, Keltz to Brendan Little e-mail, Aug. 31, 2012), with defense counsel giving dates these representative would be available in October 2012. On September 7, 2012, defense counsel received an e-mail from Tara Patterson, Esq., indicating that plaintiff would not appear at the September 13 deposition and that another lawyer (Kelleher) would make an application to appear pro hac vice (id. ¶ 8, Ex. F), despite the fact that Kimmel remains as counsel of record (id. ¶ 8).
Meanwhile, no new appearance or pro hac vice applications were filed (see Docket No. 39, Def. Reply Memo. at 2).
Plaintiff responds through Kimmel (Docket No. 37, Pl. Memo. at 8; Docket No. 38, Pl. Atty. Decl.), claiming that defendant "unilaterally noticed Plaintiff's deposition for September 4, 2012" (Docket No. 38, Pl. Atty. Decl. ¶ 9), not consulting with anyone from plaintiff's law firm to see if any scheduling conflicts exist with the date (id. ¶ 10). Plaintiff also points out that defense counsel responded, on August 31, 2012, that the cancellation of the September 4 deposition was "not acceptable" (id. ¶ 13; Docket No. 37, Pl. Memo., Ex. E). Keltz replied that Bennecoff had just given birth and Ginsburg had left the firm and a new attorney would apply for pro hac vice admission on this case and asked that defense counsel "not unilaterally reschedule our client's deposition" (Docket No. 38, Pl. Atty. Decl. ¶ 14; Docket No. 37, Pl. Memo., Ex. F, Keltz to Little e-mail, Aug. 31, 2012, 11:19 am). Plaintiff's counsel concludes that plaintiff "has been willing and able to appear for a deposition in this matter," but simply seeks it on a mutually convenient date for her and her counsel (Docket No. 38, Pl. Atty. Decl. ¶ 15). Plaintiff does not explain why existing counsel of record (Kimmel) could not schedule a deposition.
Plaintiff argues the defendant acted in bad faith in unilaterally scheduling this deposition, arguing that such unilateral action is "counter to the Federal Rules of Civil Procedure" (Docket No. 37, Pl. Memo. at 4-6, 5), without citation to any authority for this proposition. Plaintiff notes that she resides in Missouri (see also Docket No. 1, Compl. ¶ 5) and has to arrange for travel to New York for any deposition (Docket No. 37, Pl. Memo. at 6). Plaintiff accuses defendant of randomly picking dates without consultation with counsel (id.) and refutes defense contention that she is stalling the case (id. at 6-7).
In reply, defendant argues that Rule 30 does not require the parties to consult before scheduling depositions (Docket No. 39, Def. Reply Memo. at 3), and that courts have found that notice as little as seven days was deemed to be reasonable under that Rule (id. at 3-4, citing C & F Packing Co. v. Doskocil Cos., 126 F.R.D. 662, 680 (N.D. Ill. 1989). Defendant seeks to recover its reasonable attorneys' fees in making this motion (id. at 4-5).
I. Motion to Compel and ...