Williams v. Bank of America Corporation et al

Filing 147

ORDER granting in part and denying in part 116 Motion for additional time; finding as moot 137 Motion for Leave to File. See Order for details. Signed by Magistrate Judge Monte C. Richardson on 8/29/2018. (ADM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LANDON L. WILLIAMS,
Plaintiff,
v.

CASE NO. 3:15-cv-1449-J-39MCR

BANK OF AMERICA CORPORATION
and MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED,
Defendants.
________________________________/
ORDER
THIS CAUSE is before the Court on Defendants’ Motion for Additional
Time to Complete Plaintiff’s Deposition (“Motion for Additional Time”) (Doc. 116),
Plaintiff’s Response in Opposition thereto and Request for a Hearing (Doc. 136),
Defendants’ Motion for Leave to File a Reply (“Motion for Reply”) (Doc. 137), and
Plaintiff’s Response in Opposition thereto (Doc. 140). The undersigned held a
hearing on these filings on August 21, 2018. For the reasons stated herein, the
Motion for Additional Time is GRANTED in part and DENIED in part, and the
Motion for Reply is MOOT.
On May 18, 2018,1 during Plaintiff’s deposition, the Court received
telephone calls from defense counsel asking for an emergency hearing to
address certain issues that came up during the deposition. A telephonic hearing
1

On that day, the undersigned was conducting a settlement conference in
another case.

took place that day, at which the Court heard from the parties and advised the pro
se Plaintiff about the discovery process and the proper conduct during a
deposition. (See Doc. 115; Doc. 133 at 8 (“When counsel propounds questions
to you, you are to respond as simply as possible. It’s not necessary for you to do
long narratives to answer a question, unless you’re asked. If the question
requires a yes or no, then you will respond in a yes or no, but it’s not necessary
for you to go into these long narratives. You need to cooperate with counsel.”), 9
(“And as far as the questions that you will get from here on out, you are to
respond as succinctly as possible to counsel. You’re not to be vague on
questions. You’re not to give half answers. You answer to the best of your ability
as succinctly as possible.”), 12-13 (“Now, we want, obviously, all parties to be
professional and conduct themselves that way. Now, if there comes a point
where this deposition deteriorates again, then I’ll -- I’ll have to look at other – well,
let’s just not go to that at this point. Right now, continue the deposition. Mr.
Williams, you are being deposed, and, again, respond to the questions
accordingly.”).) At the hearing, defense counsel expressed a concern, based on
the way the deposition was going, that it would be “very difficult” to get through
the questions in seven hours. (Doc. 133 at 13.) Plaintiff’s response was: “Your
Honor, I have no problem in coming back to any follow-up of deposition. I don’t
have a problem. If they have questions, they can depose me for whatever time
frame.” (Id. at 13-14.)
2

On May 30, 2018, Defendants filed the Motion for Additional Time, seeking
to continue Plaintiff’s deposition for up to four additional hours “to allow for a fair
examination of Plaintiff regarding his claims and his alleged damages in his Third
Amended Complaint” and asking the Court to remind Plaintiff of the need to
provide succinct responses to Defendants’ questions. (Doc. 116 at 1, 3.)
Defendants advised that when the deposition ended after 5:00 p.m. on May 18,
2018, the parties were “on the record just over six hours and, at that time,
counsel for Defendants was not finished questioning Plaintiff regarding all of his
claims and his alleged damages.” (Id. at 2.) Defendants represented that during
his deposition, “Plaintiff was evasive and obstructive, repeatedly failing to provide
responses to the questions asked by counsel for Defendants and instead
providing long-winded editorialized commentary nonresponsive to the questions
presented to him.”2 (Id.) Defendants also advised the Court that at the time the
deposition ended, Plaintiff agreed to continue his deposition. (Id. at 3.) This was
consistent with Plaintiff’s representation at the May 18, 2018 telephonic hearing.
(See Doc. 133 at 13-14 (“Your Honor, I have no problem in coming back to any
follow-up of deposition. I don’t have a problem. If they have questions, they can
depose me for whatever time frame.”).) As such, on May 23, 2018, defense
counsel asked Plaintiff to appear for his continued deposition on June 12, 2018.
2

At least one such long-winded response was read to the Court from the
deposition transcript during the telephonic hearing on May 18, 2018. (See Doc. 133 at
4-7.)
3

(Doc. 116 at 3.) It seems that Plaintiff initially agreed, but on May 25, 2018, he
stated that he would appear for only one additional hour. (Id.)
In light of the upcoming discovery deadline of July 16, 2018 and
Defendants’ notice reserving June 12, 2018 for Plaintiff’s continued deposition,
the undersigned shortened Plaintiff’s deadline for responding to the Motion for
Additional Time to June 6, 2018. (Doc. 117.) Plaintiff was cautioned that if he did
not file a response by June 6, 2018, Defendants’ Motion for Additional Time
would be deemed unopposed. (Id.) When Plaintiff did not file a response, the
Court considered the Motion for Additional Time to be unopposed, particularly in
light of Plaintiff’s earlier representation to the Court that he would submit for
another deposition, and granted it. (Doc. 118.) The Court stated: “Defendants
shall have up to four additional hours to continue Plaintiff’s deposition. Plaintiff is
reminded to provide succinct responses to Defendants’ questions.” (Id.)
Subsequently, Plaintiff filed a Rule 60(b)(3) Motion for Relief from the
Court’s June 7, 2018 Order, arguing, in part, that he did not have adequate time
to respond to Defendants’ Motion for Additional Time.3 (Doc. 121.) On July 11,

3

Although Plaintiff is currently proceeding pro se (see Doc. 106 (relieving Peter
Michael Hoogerwoerd, Esq., Nathaly Lewis, Esq., and the law firm of Remer &
Georges-Pierre, PLLC of any further responsibility as counsel for Plaintiff)), he is an
experienced litigant having filed at least twelve civil actions in the Middle District of
Florida alone. Further, back in December 2015, the Court entered an Order in this
case, advising Plaintiff of some of the procedural rules with which he must comply as a
pro se litigant. (Doc. 3.) That Order provided, in relevant part: “If a party has missed a
filing deadline, the party must file a motion seeking leave of Court to file the document
(continued...)
4

2018, the Court vacated the June 7, 2018 Order, which allowed Defendants four
additional hours to continue Plaintiff’s deposition, recommitted Defendants’
Motion for Additional Time to the undersigned, and directed Plaintiff to respond to
that Motion by July 30, 2018. (Doc. 129.)
On July 30, 2018, Plaintiff responded to the Motion for Additional Time,
arguing that it should be denied for failure to include a memorandum of law.
(Doc. 136.) Plaintiff also disputed defense counsel’s representation that he was
evasive or obstructive during his initial deposition. (Id. at 4.) According to
Plaintiff, defense counsel’s “lack of proper planning and preparation during the
Plaintiff’s May 18, 2018 deposition” was the reason for their request for additional
time to continue Plaintiff’s deposition. (Id. at 5.) Further, Plaintiff argued that
Defendants would not be harmed if their Motion for Additional Time was denied,
because Plaintiff’s initial deposition was comprehensive and exhaustive, as it
lasted seven and a half hours. (Id. at 6, 8.)
On August 21, 2018, the Court held a hearing on Defendants’ Motion for
Additional Time and related filings. (See Doc. 145.) The parties’ contentions

3

(...continued)
out of time.” (Id. at 2.) Therefore, if Plaintiff needed an extension of time to respond to
Defendants’ Motion for Additional Time, he was put on notice that he needed to f ile a
motion seeking such relief. Nevertheless, Plaintiff did not seek an extension of the
shortened deadline to file his response to Defendants’ Motion for Additional Time either
before or after that deadline expired.
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were fully addressed at the hearing.4 For the reasons stated herein, the Court
agrees with Defendants that good cause exists for granting their request for
additional time to continue Plaintiff’s deposition.
First, Plaintiff previously advised both defense counsel and this Court on
May 18, 2018 that he was agreeable to continue his deposition “for whatever time
frame.” (See Doc. 133 at 13-14 (“Your Honor, I have no problem in coming back
to any follow-up of deposition. I don’t have a problem. If they have questions,
they can depose me for whatever time frame.”).) It is disturbing that Plaintiff
denied making this statement when questioned by the Court on August 21, 2018,
particularly since the transcript from the May 18, 2018 hearing clearly reflects this
statement and Plaintiff received a notice of that transcript as soon as it was filed.
(See Doc. 145 at 10, 11, 12 (“No, I do not remember making that statement.”);
see also Doc. 136 at 7.)
Plaintiff concedes that after his initial deposition, he agreed to make
himself available for one additional hour during which he would answer questions
relating to his alleged damages. (Doc. 136 at 6.) However, the Court finds that
one hour would be insufficient to cover all topics that would need to be covered in
light of Plaintiff’s failure to answer defense counsel’s questions directly and

4

As such, Defendants’ Motion for Reply (Doc. 137) is MOOT. Defendants
sought leave to file a reply in order to address Plaintiff’s alleged mischaracterizations of
previous discussions between Plaintiff and defense counsel regarding the continuation
of his deposition and Plaintiff’s omission of his previous commitment to the Court that
he would be willing to continue his deposition. (Id. at 2.)
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succinctly, which was also evident at the two hearings before the undersigned.5
As such, the Court will continue Plaintiff’s deposition for a period not exceeding
two and a half hours to address Plaintiff’s FLSA claims, his job duties, his
damages, the witnesses identified in discovery, and the 1500 pages of
documents served on Defendants on the last day of discovery. (See Doc. 145 at
6-7, 21.) Although the Court is limiting the deposition to two and a half hours in
an effort to lessen the burden on Plaintiff for having to appear for a follow-up
deposition, Plaintiff is cautioned that if he impedes or frustrates the examination
by failing to respond to defense counsel’s questions succinctly and directly, the
Court may extend the time beyond two and a half hours, and, if warranted,
impose appropriate sanctions. See Fed.R.Civ.P. 37.
Plaintiff’s main argument at the hearing and in his recent filings was that
Defendant’s Motion for Additional Time should be denied for failure to include a
memorandum of law.6 While it is undisputed that Local Rule 3.01(a) requires a
memorandum of law to be included in every motion, Defendants’ failure to add a

5

At the August 21, 2018 hearing, Plaintiff was not even answering the Court’s
questions directly and succinctly. (See Doc. 145 at 11-12, 17-18, 23-24.)
6

Plaintiff apparently did not raise this issue with defense counsel during their
telephone conversation. (See Doc. 145 at 32.) Also, in his earlier filings, Plaintiff stated
that when he talked with Ms. Pinson on May 30, 2018 and with Mr. Brice on June 1,
2018, he asked them to withdraw their Motion for Additional Time not because it did not
include a memorandum of law, but because “the Motion seeks to improperly prejudice
this Honorable Court by furnishing only 20 pages of a very comprehensive and
exhaustive deposition which includes three hundred fifty-two (352) pages of the
Plaintiff’s deposition testimony,” which they refused to do so (Doc. 119 at 4-5).
7

memorandum of law in the subheading was apparently inadvertent and the
Motion for Additional Time nevertheless provided adequate guidance to the Court
by citing the relevant rules under which it was seeking relief. (See Doc. 145 at
19.)
Rule 30(d)(1), which was cited in the Motion for Additional Time, clearly
states that “[t]he 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). Additional time is needed here to fully and fairly examine
Plaintiff, as he has frustrated, delayed, or impeded Defendants’ ability to examine
him at his first deposition. As stated by defense counsel, “Plaintiff’s unwillingness
to provide direct and succinct responses to the questions that were asked
unnecessarily lengthened the deposition on May 18th.”7 (Doc. 145 at 6.)
Plaintiff’s failure to provide direct and succinct responses even to the Court’s
questions was evident during the August 21, 2018 hearing and raises serious
concerns about his willingness to cooperate at any subsequent deposition. See
Middle District Discovery (2015) at 3 (“Discovery in this district should be
practiced with a spirit of cooperation and civility.”).

7

The Court rejects Plaintiff’s suggestion that defense counsel “wasted a lot of
her time” during the initial deposition by asking certain background questions (Doc. 145
at 9), which, as Defendants explain, were “necessary to assess the witness’s credibility,
competency to testify at trial, as well as prepare for any potential voir dire of jurors” (id.
at 19-20).
8

Plaintiff is cautioned once again that he must provide succinct and direct
responses to defense counsel’s questions and fully cooperate with the scheduling
of his continued deposition. As the discovery deadline has passed, the Court
finds it appropriate to extend the deadline until September 21, 2018 for the
limited purpose of taking Plaintiff’s two-and-a-half hour deposition.8 The parties
shall meet and confer regarding the scheduling of the deposition and shall
thereafter file a notice advising the Court of the agreed-upon date.
Further, as discussed at the hearing, the mediation deadline in this case is
September 14, 2018. (Doc. 98 at 1; Doc. 145 at 26.) Defense counsel advised
the Court that Plaintiff has not provided counsel with any possible dates. (Doc.
145 at 26.) Accordingly, the parties shall meet and confer about possible
mediation dates and shall thereafter file a notice advising the Court of the agreedupon date.
Upon consideration, it is ORDERED:
1.

Defendants’ Motion for Additional Time (Doc. 116) is GRANTED

only to the extent that Plaintiff’s deposition is continued for a period not to exceed
two and a half hours to address Plaintiff’s FLSA claims, his job duties, his

8

On August 8, 2018, the Court stayed the dispositive motions deadline pending
the ruling on Defendants’ Motion for Additional Time, and stated that a second
amended case management and scheduling order would be entered following the
Court’s ruling, which would address the discovery and trial deadlines. (Doc. 139.) If the
forthcoming second amended case management and scheduling order imposes a
different discovery deadline, the parties shall abide by the deadline set by Judge Davis.
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damages, the witnesses identified in discovery, and the 1500 pages of
documents served on Defendants on the last day of discovery. The deposition
shall take place no later than September 21, 2018, unless ordered otherwise in
the Court’s forthcoming second amended case management and scheduling
order. The parties shall meet and confer regarding the scheduling of the
deposition and shall thereafter file a notice advising the Court of the agreed-upon
date. The parties shall also meet and confer regarding possible mediation dates
and shall thereafter file a notice advising the Court of the agreed-upon date. In
choosing a mediation date, the parties should keep in mind that the current
mediation deadline is September 14, 2018.
2.

Defendants’ Motion for Reply (Doc. 137) is MOOT.

3.

The parties are cautioned that failure to comply with the

directives of this Order may result in the imposition of sanctions without
further notice. Once again, the parties are advised that they are expected to
practice discovery and litigate in this Court “with a spirit of cooperation and
civility.” Middle District Discovery (2015) at 3.
DONE AND ORDERED at Jacksonville, Florida, on August 29, 2018.

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Copies to:
Pro Se Plaintiff
Counsel of Record

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