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Marino v. Hogan Willig, Pllc

United States District Court, Second Circuit

August 5, 2013

DOMINIC MARINO, Plaintiff,
v.
HOGAN WILLIG, PLLC, Defendant.

DECISION AND ORDER

H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #5.

Plaintiff commenced this action pursuant to the Fair Debt Collection Practices Act ("FDCPA), 15 U.S.C. § 1692 et seq., alleging that defendant continued to attempt to collect a debt after receiving plaintiff's cease and desist letter dated September 10, 2010 and that defendant continued to attempt to collect a debt after informing plaintiff that it's letter dated October 8, 2010 would be its "final letter." Dkt. #1, ¶¶ 13-15.

Currently before the Court is plaintiff's motion to compel defendant to appear for deposition and for a protective order allowing plaintiff to withhold responses to defendant's discovery demands and appearance at deposition until depositions of defendant have been completed, as well as a request for attorney's fees with respect to the cost of this motion (Dkt. #38), and defendant's cross motion for a protective order limiting the scope of defendant's designated corporate representative's deposition testimony to matters alleged in plaintiff's complaint; precluding plaintiff from including plaintiff's response to defendant's request for admission in his request for a stay of discovery; and compelling plaintiff to respond to defendant's discovery demands prior to the date of defendant's depositions, as well as a request for attorney's fees with respect to the cost of this motion. Dkt. #40.

FACTUAL BACKGROUND

By e-mail dated December 20, 2012, plaintiff's counsel advised that he intended to serve deposition notices and inquired as to the availability of witnesses on January 28, 29, 30 and 31. Dkt. #38-4. Receiving no response, on December 21, 2012, plaintiff's counsel served deposition notices for January 29, 2013. Dkt. #38-5.

By e-mail dated January 10, 2013, defendant advised of availability to conduct depositions on January 28, 2013 and requested that they be conducted in their office. Dkt. #38-6. Plaintiff's counsel advised that he was not available on January 28, 2013 and proposed January 30th or 31st if the dated noticed on the depositions was not workable. Dkt. #38-6. In response, defendant advised that counsel was scheduled for a trial that week and requested an extension of the Case Management Order, which set a January 31, 2013 deadline for completion of discovery. Dkt. ##34 & 38-6. Plaintiff's counsel agreed to allow defendant to request the extension and requested dates for deposition in February. Dkt. #38-6. In response to defendant's proposed dates, plaintiff's counsel confirmed February 8, 2013 for depositions of defendant's representatives. Dkt. #38-6.

By Notice of Deposition dated January 15, 2013, defendant sought to depose plaintiff on February 8, 2013. Dkt. #38-8. By e-mail dated January 17, 2013, plaintiff's counsel advised that

As Plaintiff noticed Defendant prior to this notice, Plaintiff has priority and therefore the Defendant's deposition will occur before the Plaintiff's. As there is going to be at least two individuals deposed that day on behalf of the Defendant, and maybe more, I don't think that there is going to be sufficient time to conduct my client's deposition on the same day. Please advise as to an alternative date for my client's deposition.

Dkt. #38-9. In response, defendant requested plaintiff's availability during the week of February 18, 2013. Dkt. #38-9.

On January 18, 2013, defendant served a Request for Admissions; Request for Production of Documents; and Interrogatories upon plaintiff. Dkt. #38-10.

By e-mail dated January 24, 2013, plaintiff's counsel confirmed plaintiff's deposition on February 20, 2013. Dkt. #38-9.

By Text Order entered January 29, 2013, the Court granted defendant's motion to extend the deadline for completion of discovery to March 29, 2013. Dkt. #37.

By e-mail dated February 5, 2013, plaintiff's counsel inquired who would be defendant's 30(b)(6) witness at deposition. Dkt. #38-11. By letter dated February 6, ...


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