Kirzhner v. Silverstein et al

Filing 201

ORDER granting in part and denying in part 188 Motion for Protective Order, The deposition of Mr. Mansfield shall not occur on May 1, 2011, and need not occur in Colorado; granting 190 Motion to Extend, The discovery cut-off is extended to and including June 3, 2011, solely to allow the deposition of Mr. Mansfield to be completed, and the dispositive motion deadline is extended to June 24, 2011. by Magistrate Judge Boyd N. Boland on 5/9/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 09-cv-02858-CMA-BNB
ILONA KIRZHNER,
Plaintiff,
v.
DAVID SILVERSTEIN,
EVERGREEN INDUSTRIES, INC., a Colorado corporation, f/k/a Breakthrough Management
Group International, Inc., f/k/a Breakthrough Management Group, Inc.,
DAVID SILVERSTEIN INVESTMENTS, LLC, a Colorado limited liability company,
DSI INVESTMENTS, LLC, a Colorado limited liability company,
BMGI CORPORATION, a Delaware corporation, and
BMGI HOLDINGS, LLC, a Delaware limited liability company,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Letter from David R. Mansfield [Doc. # 188, filed 4/29/2011] which I will

construe as a Motion for Protective Order; and
(2)

Defendants’ Joint Motion to Extend the Discovery Cut-Off for the Limited

Purpose of Completing the David Mansfield Deposition and to Extend the Dispositive
Motion Deadline [Doc. # 190, filed 5/2/2011] (the “Motion to Extend”).
The scheduling of the deposition of Mr. Mansfield apparently has been difficult. The
plaintiff reports that it has been scheduled to occur on five separate occasions, but has never
been taken. Response [Doc. # 186] at ¶4. The plaintiff also asserts that Mr. Mansfield has
waived service of process of the subpoena, which calls for his deposition to occur in Colorado,

and she requests that I require Mr. Mansfield to honor his agreement and to appear for a
deposition in Colorado. Id. at p. 4.
Mr. Mansfield is not a party to this litigation and is a resident of Philadelphia,
Pennsylvania, beyond the subpoena power of the court. I lack any authority to require Mr.
Mansfield to travel to Colorado to sit for a deposition. See Fed. R. Civ. P. 45(b)(2) (limiting the
subpoena power of the court to the district of the issuing court or outside the district but not more
than 100 miles from the place specified for the deposition).
Plaintiff’s counsel complains that the press of other business impairs its ability to take the
deposition prior to the discovery cut-off, and anytime until late May 2011. The press of other
business generally is not a basis to extend discovery deadlines. If plaintiff’s counsel is too busy
to meet its obligations in this case, it should engage additional lawyers to assist or it should
withdraw.
The defendants suggest that these difficulties are easily overcome by a brief extension of
the discovery cut-off to allow the deposition of Mr. Mansfield reasonably to be taken, and a
concomitant extension of the dispositive motion deadline. Motion to Extend [Doc. # 190] at p.
3. Although an agreement as to the length of such an extension apparently could not be reached,
the plaintiff does not appear to oppose the idea.
IT IS ORDERED:
1.

The Motion for Protective Order [Doc. # 188] is GRANTED IN PART. The

deposition of Mr. Mansfield shall not occur on May 1, 2011, and need not occur in Colorado;
and

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2.

The Motion to Extend [Doc. # 190] is GRANTED. The discovery cut-off is

extended to and including June 3, 2011, solely to allow the deposition of Mr. Mansfield to be
completed, and the dispositive motion deadline is extended to June 24, 2011.
Dated May 9, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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