Teachers Insurance Company v. Fulmer, Leroy, Albee & Baumann, P.L.C. et al

Filing 41

ORDER denying without prejudice 40 Motion to Compel depositions and extend discovery deadline. Signed by Magistrate Judge Thomas B. Smith on 10/10/2014. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TEACHERS INSURANCE COMPANY,
Plaintiff,
v.

Case No: 6:13-cv-1533-Orl-40TBS

FULMER, LEROY, ALBEE & BAUMANN,
P.L.C., JASON MOUSSA and MICHAEL
W. LEROY,
Defendants.
ORDER
This matter comes before the Court on Plaintiff Teachers Insurance Company’s
Motion to Compel Depositions (Opposed) and Motion for Extension of Time for the
Discovery Deadline (Unopposed). (Doc. 40). In the motion, Plaintiff asks the Court to
compel Defendants Jason Moussa and Michael Leroy to appear for their depositions, and
to extend the discovery deadline by thirty days from November 4, 2014 to December 4,
2014, “to allow for the [Defendants’] depositions and any depositions needed following
these critical depositions.” (Id., ¶¶ 8). The motion is due to be denied without prejudice.
Plaintiff filed this legal malpractice action against Moussa, Leroy, and their law
firm, Fulmer, Leroy, Albee & Bauman, P.L.C., on October 3, 2013. (Doc. 1).
Defendants answered the complaint, and on May 30, 2014, the Court entered a Case
Management and Scheduling Order (“CMSO”). (Doc. 25). The CMSO set the following
deadlines: Mandatory Initial Disclosures: June 30, 2014; Disclosure of Plaintiff’s Expert
Reports: September 4, 2014; Disclosure of Defendants’ Expert Reports: October 1, 2014;

Discovery Deadline: November 4, 2014; Dispositive Motions Deadline: December 4,
2014. (Id.).
Between August 27 and October 7, 2014 Plaintiff’s counsel sent six emails to
Defendant’s counsel inquiring about Defendants’ availability for depositions. (Doc. 40,
pp. 17–19). On October 8, Defendants’ counsel responded, stating that “Mr. Leroy ... is
jammed right now for the month of November. However, we are going to try and work it
out for the 2nd or 3rd week in November, which will still have to be approved by Mr. Leroy.”
(Id., p. 20). Defendants’ counsel also said he had “spoken with Mr. Moussa” and was
“awaiting his response in regards to his availability.” (Id.).
Rule 30 of the Federal Rules of Civil Procedure governs depositions by oral
examination. “A party who wants to depose a person by oral questions must give
reasonable written notice to every other party. The notice must state the time and place
of the deposition and, if known, the deponent’s name and address.” FED. R. CIV. P.
30(b)(1). Rule 37(d)(1)(A)(i) allows a court impose sanctions if a party “fails, after being
served with proper notice, to appear for that person’s deposition.” Plaintiff’s motion to
compel must be denied because Plaintiff has not served notices of taking Moussa and
Leroy’s depositions. See Dang ex rel. Dang v. Eslinger, Civ. No. 6:14-cv-37-Orl-31TBS,
2014 WL 3611324, at *1 (M.D. Fla. July 22, 2014).
The Court’s decision to deny the motion to compel negates the need for the
requested extension of time to complete discovery. Additionally, Rule 16(b)(4) requires
a showing of “good cause” to modify deadlines in a scheduling order, and “[m]ere
stipulations by the parties do not constitute good cause.” 1 Hernandez v. Mario’s Auto

Plaintiff’s memorandum of law fails to discuss the standard for modifying a scheduling order.
(See Doc. 40, pp. 3–4).
1

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Sales, Inc., 617 F. Supp. 2d 488, 493 (S.D. Tex. 2009). Plaintiff has failed to show good
cause for extending the discovery deadline. Accordingly, Plaintiff’s motion is DENIED
without prejudice.
DONE and ORDERED in Orlando, Florida on October 10, 2014.

Copies furnished to Counsel of Record

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