Laplante v. Estano

RULING ON DEFENDANT’S MOTION TO COMPEL AND FOR COSTS TO MODIFY SCHEDULING ORDER SMITH, United States Magistrate Judge. Pending before the court is the defendant’s Motion to Compel and for Costs (Dkt.# 25) and defendant’s Motion to Modify the Scheduling Order (Dkt.# 35). To the extent that the Motion to Compel seeks to compel the continuation of the deposition of the plaintiff, it is GRANTED. At the conclusion of all proceedings, on application, the court will consider the amount of attorney’s fees, if any, that should be awarded in connection with this motion. See Fed.R.Civ.P. 37(a). The Motion to Modify the Scheduling Order is also GRANTED. The defendant’s Motion to Compel1 is granted absent objection. Rule 7 of the Local Rules of Civil Procedure states that “[flailure to submit [within twenty-one days] a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion ....” Loe. R. Civ. P. 7(a) (2005). The defendant filed his motion on November 29, 2005. (Dkt.# 25). To date, the plaintiff has not submitted a brief in opposition. As such, the motion is granted absent objection. Rule 30 of the Federal Rules of Civil Procedure provides that, “[u]nless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours.” Fed.R.Civ.P. 30(d)(2) (2005). Moreover, “[t]he court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or of the deponent or another person, or other circumstance, impedes or delays the examination.” Id. Based upon a review of the transcript of the deposition of October 27, 2004, (D.’s Mem. Supp. Mot., 11/29/04, Ex. 2), the court [440] finds that the plaintiff, and his attorney, were recalcitrant and uncooperative in their refusal to answer questions that seek information which is clearly relevant, not privileged, not overly broad, and not unduly burdensome. See Fed.R.Civ.P. 26(b)(1). Moreover, the court finds the plaintiffs unilateral curtailment of the deposition and subsequent offer of telephonic follow-up to be unjustified. (See D.’s Mem. Supp. Mot., 11/29/04, Ex 1; Pl.’s Mem. Opp. Mot. Mod. Sched. Ord., 2/1/05, Exs. A-C). In addition, that the plaintiff unilaterally offered himself to continue the deposition for a two-hour window on January 11, 2005 is not significant. (See Pl.’s Mem. Opp. Mot. Mod. Sched. Ord., 2/1/05, Ex. D). As such, the court hereby ORDERS that the plaintiff avail himself to the defendant for a continuation of the deposition at a mutually agreeable time and place within 45 days of this order. The plaintiff is warned, however, that he if again fails to be forthcoming and cooperative with obviously relevant and not privileged information, the deposition will be continued thereafter, at his expense, until he complies with that which the Federal Rules of Civil Procedure demand of him. Accordingly, the defendant’s Motion to Modify the Scheduling Order is granted. Depositions shall be taken within forty-five (45) days of this order. Dispositive motions shall be filed within seventy-five (75) days of this order. The trial brief shall be filed within one hundred and fifteen (115) days of this order. This case shall be trial ready upon the submission of the trial brief. This is not a recommended ruling. This is a discovery ruling and order reviewable pursuant to the “clearly erroneous” standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R.Civ.P. 6(a), (e) and 72(a); and Rule 2 of the Local Rules for U.S. Magistrate Judges. As such, it is an order of the court. See 28 U.S.C. § 636(b)(written objections to ruling must be filed within ten days after service of same). IT IS SO ORDERED. RULING ON PLAINTIFF’S MOTION FOR RECONSIDERATION Pending before the court is the plaintiffs Motion for Reconsideration (Dkt.# 38). He asks the court to reconsider its March 1, 2005 ruling on the defendant’s motion to compel or, in the alternative, to clarify its ruling. The motion is DENIED IN PART and GRANTED IN PART. To the extent that the motion requests that the court reconsider its March 1 ruling, it is DENIED. To the extent that the motion seeks clarification of the ruling, it is GRANTED and said clarification is set forth below. The relevant facts are as follows. On November 29, 2004, the defendant filed his first motion to compel and for costs. (Dkt.# 25). The plaintiff failed to properly respond to this motion within the requisite twenty-one days. See Loe. R. Civ. P. 7(a)l. In fact, the plaintiff failed to properly respond to this motion at all. The court reviewed the motion and also “happened upon” the plaintiffs oppositions to related motions in which he touched upon the motion in question. In granting absent objection the defendant’s motion, the court was mindful of the plaintiffs arguments, even though the plaintiff did not bother to include them in a separate opposition memorandum, as the Local Rules require. It is well-established that “the function of a motion for reconsideration is to present the court with an opportunity to correct manifest errors of law or fact or to consider newly discovered evidence....” Lo Sacco v. City of Middletown, et al., 822 F.Supp. 870, 876-77 (D.Conn.1993) (citations omitted). There being neither manifest errors of law or facts present nor newly discovered evidence proffered, the motion for reconsideration is denied. The plaintiff argues that the court’s ruling is “clearly erroneous” and “should be reconsidered in light of evidence and arguments that [the court] apparently overlooked[, as the ruling] indicates that it was granted absent objection.” (Pl.’s Mem. Supp. Mot., 3/8/05, at 3-4). First of all, the motion was granted absent objection because a proper objection was indeed absent. Rule 7 of the Local Rules of Civil Procedure is clear: “Failure to submit a memorandum in opposition to a motion may be deemed sufficient cause to grant the motion, except where the [441] pleadings provide sufficient grounds to deny the motion.” Loe. R. Civ. P. 7(a)l. The plaintiff failed to submit a memorandum in opposition to the motion. As such, sufficient cause existed to grant the motion. The court cannot be expected to scour the entire case file to find arguments that a party could have properly included in a memorandum in opposition, just as the court cannot be expected to scour The Federal Supplement for eases which better support his arguments. Frankly, the court is surprised that plaintiffs counsel attempts to blame the court for that which he admits occurred through his own inadvertence. (See Pl’s Mem. Supp. Mot., 3/8/05, at 4). Here, however, the court in fact “came across” arguments which related to the motion in question in another memorandum but did not find them persuasive. Instead, based on a review of the transcript of the deposition of October, 2004, the court found that “the plaintiff, and his attorney, were recalcitrant and uncooperative in their refusal to answer questions that seek information which is clearly relevant, not privileged, not overly broad, and not unduly burdensome.” (Dkt. #37 at 2) (citations omitted). Moreover, the court ordered that the plaintiff “avail himself to the defendant for a continuation of the deposition at a mutually agreeable time and place within 45 days____” and warned him that if he “again fails to be forthcoming and cooperative with obviously relevant and not privileged information, the deposition will be continued thereafter, at his expense, until he complies with that which the Federal Rules of Civil Procedure demands of him.” (Id.). The plaintiff also seeks clarification of the order regarding how much longer he must submit to deposition. The court is unable to provide any meaningful clarification because the answer depends on the plaintiffs behavior, as implicit in the order. The plaintiff is correct to point out that the Federal Rules of Civil Procedure provide for seven hours of deposition. Fed.R.Civ.P. 30(d)(2). However, the rule also states that “[t]he court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.” Id. (emphasis added). Therefore, to clarify the order, the number of hours remaining depends upon the plaintiffs cooperation in this regard. The court notes that the plaintiff has filed a motion for a protective order relating to this deposition. The court will rule on that motion once a response is submitted and will modify the schedule if necessary. This is not a recommended ruling. This is a discovery ruling and order reviewable pursuant to the “clearly erroneous” standard of review. 28 U.S.C. § 636(b)(1)(A); Fed. R.Civ.P. 6(a), (e) and 72(a); and Rule 2 of the Local Rules for U.S. Magistrate Judges. As such, it is an order of the court. See 28 U.S.C. § 636(b)(written objections to ruling must be filed within ten days after service of same). At the conclusion of all proceedings in this ease, on application, the court will consider the amount of attorney’s fees, if any, to be awarded in connection with this motion. IT IS SO ORDERED. Footnotes [1] The defendant’s motion is self-described as a "Joint” Motion to Compel and for Costs. (Dkt.# 25). "Joint” motions are unopposed motions filed jointly by both sides. Because the motion in question was filed by the defendant and sets forth the defendant's arguments, the court can only conclude that by "joint” the defendant means that the motion is composed of two motions: a motion to compel and a motion for costs.