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Williams v. Fire Sprinkler Associate, Inc.

United States District Court, E.D. New York

March 27, 2017



          A. KATHLEEN TOMLINSON, Magistrate Judge

         I. Preliminary Statement

         Plaintiffs James Williams (“Williams”) and George Mena (“Mena”) (collectively, the “Plaintiffs”) has brought the instant action against Fire Sprinkler Associates, Inc. (“Fire Sprinkler”) Mark Mausser (“Mausser”) and William Lotten (“Lotten”) (collectively, the “Defendants”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”). In addition, Plaintiff George Mena brings additional claims pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) as well as Article 19 § 650 et seq. of the New York Labor Law (“NYLL”). See generally Complaint (“Compl.”) [DE 1].

         Presently before the Court is Plaintiffs' letter motion [DE 59] seeking: (1) to compel Defendant Mark Mausser to complete his deposition; and (2) a total of four additional hours per witness to depose Defendants Mausser, Lotten and non-party witness Thomas Monaghan. See DE 59. Defendants oppose the motion. DE 61. For the reasons that follow, Plaintiffs' motion is DENIED.

         II. Discussion

         A. Non-Compliance with Local Civil Rule 37.3

         As an initial matter, and similar to Plaintiffs' previously filed motion to compel [DE 56], the instant motion fails to include a certification, in compliance with Local Civil Rule 37.3, of the parties' attempts to meet and confer prior to filing the instant motion -- as counsel are required to do to fulfill their obligations. Counsel were specifically instructed at the Initial Conference that they were required to have a substantive discussion about any discovery disputes, not an exchange of hit-and-run emails which appear to be the sole form of communication used here. This directive was memorialized in the Court's Minute Order from the Initial Conference. See DE 25, ¶ 7. The failure to comply with Rule 37.3, is, therefore, sufficient in and of itself to reject the motion. Notwithstanding this deficiency, the Court in its discretion will nevertheless address the merits.

         B. The Parties' Positions

         Plaintiff asserts that although Mausser appeared for his deposition, his “testimony lasted for [only] 6 hours and 49 minutes - including the approximately 1 hour spent reviewing several pages of exhibits and documents during his deposition.” See DE 59 at 1. As such, Plaintiffs assert they did not obtain the benefit of the full seven hours afforded by the Federal Rules of Civil Procedure and thus seek an order “compel[ling] Defendant Mark Mausser to appear in-person to complete his deposition questioning.” Id. In addition, Plaintiffs also request that they be granted “4 hours additional time per witness, as necessary, to depose Defendant Mausser, Defendant Lotten and key witness Thomas Monaghan, because their deposition testimony will likely last longer than 7 hours.” Id. at 2. With respect to this latter request, Plaintiffs state that “on June 14th [Mausser] testified to being the Owner and President of Defendant Fire Sprinkler Associates since its inception in 1990” and therefore “Defendants' deposition necessarily included detailed questioning related to the Defendant Company itself.” Id. at 3. In addition, according to Plaintiffs, “[t]he depositions of Owner-Defendant Mausser, of Defendant William Lottten (Plaintiffs' former supervisor) and of witness Monaghan also need to include detailed questioning about policies, if any, regarding discrimination, harassment and/or retaliation in the workplace during and after Plaintiffs' employment; about policies, if any, regarding employee complaints of such unlawful conduct; and about Defendants' purported ‘investigation' of Plaintiffs' legally protected complaints.” Id.

         In response, Defendants assert that to the extent Plaintiffs are seeking additional time to depose Lotten and Monaghan, these issues have been resolved since “Monaghan's deposition proceeded on June 20, 2016 in accordance with the Court's ruling”[1] and because “plaintiffs' counsel finished questioning Mr. Lotten in just under 7 hours and acknowledged same on the record at Mr. Lotten's deposition.” DE 61 at 1. With respect to producing Mausser for additional testimony, Defendants assert that “Plaintiffs have had a full and complete deposition of Mausser in which Plaintiffs' counsel had ample opportunity to cover every pertinent subject matter with him as evidence[d] by the length of live testimony. Mr. Mausser's deposition went from 11:05am to 7:00pm[.]” Id. In addition, Defendants claim that “Plaintiffs' counsel offers no proof that Mausser actually spent nearly an hour reviewing documents and does not cite any legal authority to support her argument that time spent reviewing documents and exhibits should be subtracted from the total length of the deposition.” Id. Further, “Plaintiffs' counsel never specifically indicated what further areas she needed to cover in a continued deposition” and in any event, it was “Plaintiffs' counsel own method and style of questioning that caused delays.” Id.

         C. Applicable Law

         “Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. Fed.R.Civ.P. 30(d)(1); Chawla v. Metro. Oral Surgery Assocs., P.C., No. 11-CV-6248, 2014 WL 4678023, at *5 (E.D.N.Y. Sept. 19, 2014); Arista Records LLC v. Lime Grp. LLC, No. 06 CIV. 5936, 2008 WL 1752254, at *1 (S.D.N.Y. Apr. 16, 2008). “‘Only time spent actually taking the deposition, not breaks, counts toward the seven hours.'” Rahman v. The Smith & Wollensky Rest. Grp., Inc., No. 06 CIV.6198 LAK JCF, 2009 WL 72441, at *4 (S.D.N.Y. Jan. 7, 2009) (quoting Condit v. Dunne, 225 F.R.D. 100, 112 (S.D.N.Y. 2004) (citing Fed. R.Civ. P. 30(d) advisory committee's note to 2000 Amendment)). The Rule's 7-hour time limit merely serves as a presumptive baseline since “Rule 26(b) authorizes a court to ‘alter the limits in these rules . . . on the length of depositions under Rule 30.” Saeed v. Count of Nassau, No. CV 09-3314, 2011 WL 6945755, at *1 (E.D.N.Y. May 23, 2011); see Arista Records, 2008 WL 1752254, at *1 (citing In re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2000)) (“A district court has broad discretion to set the length of depositions appropriate to the circumstances of the case.”). “‘A party seeking a court order to extend the time for examination or otherwise alter the limitations is expected to show good cause to justify such an order.'” Calderon v. Symeon, No. 3:06 CV 1130, 2007 WL 735773, at *1 (D. Conn. Feb. 2, 2007) (quoting 7 James Wm. Moore, et al, Moore's Federal Practice, § 30.45 (3d. ed. 2006)); see Saeed, 2011 WL 6945755, at *1 (“[T]he party seeking to extend the time permitted under Rule 30 must provide good cause to justify an enlargement.”); Carmody v. Vill. of Rockville Ctr., No CV-05-4907, 2007 WL 2177064, at *2 (E.D.N.Y. July 27, 2007) (same). Likewise, whether the requisite “good cause” exists requires a fact-specific inquiry. Saeed, 2011 WL 6945755, at *1; Margel v. E. G.L. Gem Lab Ltd., No. 04 Civ. 1514, 2008 WL 2224288, at *8 (S.D.N.Y. May 29, 2008) (finding relevant to the inquiry of good cause is whether the witness needs to be examined concerning a large number of documents, “whether the time previously afforded for the deposition was used efficiently and whether there are additional relevant areas of inquiry”).

         D. Application to the Facts

         Initially, the Court points out that it will only address the issues Plaintiffs' have raised concerning Defendant Mausser's deposition since it appears that the issues concerning the ...

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