Silano v. Wheeler

Filing 115

RULING granting in part and denying in part 94 Motion to Compel and for Sanctions, as set forth in the attached ruling. Signed by Judge Holly B. Fitzsimmons on 6/3/2014. (Katz, Samantha)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VIRGINIA SILANO

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v.
DANIEL WHEELER

CIV. NO. 3:13CV185 (JCH)

RULING ON DEFENDANT’S MOTION TO COMPEL AND
FOR SANCTIONS [DOC. #94]
Defendant Daniel Wheeler moves to compel pro se plaintiff
Virginia Silano to appear for her continued deposition. [Doc. #94].
Defendant also seeks sanctions against plaintiff for her “deliberate
refusal to attend her continued deposition.” [Id.]. For the
following reasons, defendant’s motion to compel and for sanctions
[Doc. #94] is GRANTED IN PART AND DENIED IN PART.
On January 27, 2014, plaintiff appeared for her deposition at
the offices of defense counsel. The deposition concluded,
Mr. Durao: Okay. That is all the questions I have for
today. I want to keep this deposition open so I can
ask Ms. Silano further questions pertaining to
subject matters that are relevant to this lawsuit.
Ms. Silano: Okay.
[Doc. #94-2, Silano Depo. Tr., Jan. 27, 2014, 22:12-17]. There is no
record of plaintiff objecting to keeping the deposition open. The
excerpt of the deposition transcript appended to defendant’s motion
reflects the deposition starting at 11:41 A.M. and ending at 5:02
P.M. [Doc. #94-2]. Defendant thereafter re-noticed plaintiff’s
continued deposition, which she failed to attend. In a letter to
counsel, plaintiff asserted that she never “agreed” to keep her
deposition open.

She also stated she would not appear absent a

court order.

The Court held a discovery conference on May 21, 2014,

where the parties discussed the pending motion to compel. Defense
counsel represented that he seeks to question plaintiff at the
continued deposition regarding certain allegations in her second
amended complaint, which was not operative at the time of her first
deposition.1
The Court GRANTS defendant’s motion to compel plaintiff’s
appearance at her continued deposition. However, in light plaintiff
already testifying for five hours and twenty one minutes, the Court
will limit her continued deposition to two and one half hours. The
Court finds that defendant’s asserted basis for allowing greater
than seven (7) hours of testimony is warranted on a limited basis
because plaintiff’s deposition occurred prior to the second amended
complaint becoming operative. See Fed. R. Civ. P. 30(d)(1) (“Unless
otherwise stipulated or ordered by the Court, a deposition is
limited to 1 day of 7 hours.”). The parties shall endeavor to agree
on a mutually agreeable date and location for plaintiff’s continued
deposition.
Defendant also seeks sanctions for plaintiff’s failure to
appear at her continued deposition. The Court in its discretion
DENIES this request. See Fed. R. Civ. P. 37(d) (noting that a Court
may impose sanctions if a party fails to appear for a properly
noticed deposition).
For the reasons stated, defendant’s motion to compel and for
sanctions [Doc. #94] is GRANTED IN PART AND DENIED IN PART. This is
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Judge Hall granted plaintiff’s motion to amend/correct complaint on February 19,
2014. [Doc. #48].
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not a Recommended Ruling. This is a discovery ruling or order which
is reviewable pursuant to the “clearly erroneous” statutory standard
of review. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); and D.
Conn. L. Civ. R. 72.2. As such, it is an order of the Court unless
reversed or modified by the district judge upon motion timely made.

SO ORDERED at Bridgeport this 3rd day of June 2014.

______ /s/ ______________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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