Jenkins v. Duffy Crane and Hauling, Inc. et al

Filing 75

Minute ORDER granting 70 Motion to Amend/Correct/Modify; granting in part and denying in part 71 Motion for Leave. Discovery Cut-Off 1/30/2015. Dispositive Motions Deadline 2/16/2015. The Final Pretrial Conference set for 1/21/15 at 10:00 AM is Vacated and RESET to 3/30/2015 at 10:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. The proposed pretrial order shall be submitted on or before 3/23/2015. By Magistrate Judge Kristen L. Mix on 11/13/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00327-CMA-KLM
FRANKLYN A. JENKINS,
Plaintiff,
v.
DUFFY CRANE AND HAULING, INC., a Colorado Corporation,
DUFFY HOLDINGS, LLC, a Colorado Limited Liability Company, and
DUFFY CRANE, INC., a Colorado Corporation,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the parties’ Second Stipulated Motion to
Amend the Case Management Order [#70]1 (the “Scheduling Order Motion”) and
Plaintiff’s Partially Unopposed Motion for Leave to Take Deposition Pursuant to
F.R.C.P. 30(a)(2)(B) [#71] (the “Deposition Motion”).
In the Scheduling Order Motion, the parties jointly request that the Court modify
certain deadlines set in the Scheduling Order [#51]. See generally Scheduling Order
Motion [#70].
In the Deposition Motion, Plaintiff explains that the parties agreed to depose a
witness, Mike Watters (“Watters”), on November 17, 2014. Deposition Motion [#71] at 3.
Plaintiff retained the Larimer County Sheriff’s Department to perfect service of a subpoena
on Mr. Watters and was notified that Mr. Watters is confined in the Larimer County Jail. Id.
Plaintiff states that the parties “were unaware that Mr. Watters was in jail until” the day
service was effectuated, November 10, 2014. Id. Plaintiff further states that he has
confirmed that the deposition of Mr. Watters “can take place at a conference room at the
Larimer County Jail on November 17, 2014, at 1:00 p.m.” Id. As a result, he asks the
Court for leave to take Mr. Watter’s video deposition at that time at the Larimer County Jail

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“[#70]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Minute Order.

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pursuant to Fed. R. Civ. P. 30(a)(2)(B). Plaintiff argues that “[i]f Plaintiff loses this
opportunity, there is no certainty that Plaintiff will be able to locate and serve Mr. Watters
in the future.” Id. at 4.
As an initial matter, the Deposition Motion falls under the Court’s discovery
procedures. In other words, this issue should have been presented to the Court by
telephone hearing, not by filing a written motion.
Second, Defendants do not oppose Plaintiff’s desire to depose Mr. Watters.
Response [#72] at 1. However, they do take issue with the date chosen by Plaintiff. Id.
Defendants argue that the deposition date, which is only one week after the subpoena was
issued, violates D.C.COLOLCivR 30.1 and Fed. R. Civ. P. 30(b)(1). Id. Defendants
maintain that the deposition should be scheduled in “mid-December at a date and time
mutually convenient to the parties.” Id. at 2. Defendants further argue that “the Larimer
County Sheriff’s Department records show that Mr. Watters will be incarcerated until April
30, 2015" and that “[i]t is difficult to envision a scenario where the parties would be more
certain about where Mr. Watters will be in early December.” Id.
Fed. R. Civ. P. 30(a)(2)(B) states that a party must seek leave of the Court to
depose an individual who “is confined in prison.” Fed. R. Civ. P. 30(b)(1) requires that the
party noticing a deposition “give reasonable written notice” and D.C.COLO.LCivR 30.1
clarifies that “reasonable notice for taking a deposition shall be not less than 14 days, as
computed under Fed. R. Civ. P. 6.” While the Court may order that notice of fewer days
constitutes “reasonable notice” in certain circumstances, here, the Court agrees with
Defendants and finds that these circumstances do not support Plaintiff’s request to deviate
from the dictates of D.C.COLO.LCivR 30.1. As Defendants note, Plaintiff’s fear that Mr.
Watters may evade his deposition is unfounded because he is incarcerated. Accordingly,
IT IS HEREBY ORDERED that the Scheduling Order Motion [#70] is GRANTED.
IT IS FURTHER ORDERED that the Scheduling Order entered on February 24,
2014 [#51] and amended on September 2, 2014 [#66], is further modified to extend the
following deadlines:
•
•

Discovery Cut-Off
Dispositive Motion Deadline

January 30, 2015
February 16, 2015

IT IS FURTHER ORDERED that the Deposition Motion [#71] is DENIED in part and
GRANTED in part.2 The Deposition Motion is GRANTED to the extent it requests
permission to depose an imprisoned individual pursuant to Fed. R. Civ. P. 30(a)(2)(B). The
Deposition Motion [#71] is DENIED to the extent it asks the Court to either (1) find that the
notice provided by subpoena was reasonable, or (2) excuse Plaintiff from compliance with
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The Court may rule on a pending motion at any time. D.C.COLO.LCivR 7.1(d).

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Fed. R. Civ. P. 30(b)(1) and D.C.COLO.LCivR 30.1.
IT IS FURTHER ORDERED that the Final Pretrial Conference set for January 21,
2015 at 10:00 a.m. is VACATED and RESET to March 30, 2015 at 10:00 a.m. in
Courtroom C-204, Second Floor, Byron G. Rogers United States Courthouse, 1929 Stout
Street, Denver, Colorado.
IT IS FURTHER ORDERED that the proposed pretrial order shall be submitted on
or before March 23, 2015. The proposed pretrial order to be submitted to the Magistrate
Judge under the ECF Procedures may be submitted in WordPerfect or pdf format and shall
be emailed to the Magistrate Judge at [e-mail].
Attorneys and/or pro se parties not participating in ECF shall submit their proposed
pretrial order on paper to the Clerk’s Office. However, if any party in this case is
participating in ECF, it is the responsibility of that party to submit the proposed pretrial order
pursuant to the District of Colorado ECF Procedures.
The parties shall prepare the proposed pretrial order in accordance with the
form which may be downloaded from the Forms section of the court’s website at
http://www.cod.uscourts.gov/CourtOperations/RulesProcedures/Forms.aspx.
Dated: November 13, 2014

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