Jones-Walton et al v. Villas at Lake Eve Condominium Association, Inc. et al

Filing 177

ORDER denying without prejudice 172 Motion to take in excess of ten depositions per side. Signed by Magistrate Judge Thomas B. Smith on 10/17/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BONLYDIA JONES-WALTON,
FREDERICK HARRIS, JOHN HARRIS,
PAUL HARRIS, SR. , A.H., PAUL
HARRIS, JR. , RICHARD HARRIS, LISA
LESTER, R.H., LAMAR SIMMONS,
DEREK MCNEAL, J.H., BONIRIS
MCNEAL, CHRISTINA HARRIS, S.M.,
RICHARD HARRIS, JR. , S.M., TRACIE
AUSTIN, OCTAVIA HARRIS, JESSICA
AUSTIN, DANITICA SIMMONS, JAMES
AUSTIN, DENISE AUSTIN, BRANDON
SCOTT, RICHARD HARRIS, IV , ERIKA
BELL-SCOTT, ZELMA MILLERJOHNSON, MARK COOKE, T.H., M.H.,
K.H., B.H., DANIEL HARRIS, MARY
HALL, DIONNE HARRINGTON, D.E.,
D.S., D.S., L.S., J.H., DARREN HARRIS,
MARETTA HARRIS, DANIELLE HARRIS,
DENISE STRICKLAND, DARRYL
STRICKLAND, D.S., DENEEN
STRICKLAND, DENE STRICKLAND,
DAVID HARRIS, JOSHUA HARRIS,
MATTHEW HARRIS, MALCOLM
HARRIS, AMBER HARRIS, JAVON
JORDAN, ESTHER AUSTIN-HALL,
LENORE AUSTIN-FULFORD, THOMAS
FULFORD, JOHN JORDAN and EDDIE
PARKER,
Plaintiffs,
v.
VILLAS AT LAKE EVE CONDOMINIUM
ASSOCIATION, INC., KA AND KM
DEVELOPMENT INC., VK AND MK
DEVELOPMENT INC., EVE
MANAGEMENT INC., LISA CATENA,
VINOD KALIDAS, TROY PEARSON,
LAURA REEVES, ROBERT LARSON,
TERRANCE MARTINEC, DARRYL
MARK HOPPER, THOMAS LIN, PAUL

Case No: 6:15-cv-995-Orl-22TBS

HOLLINGSWORTH, BRENT BAGSHAW,
TODD BUTLER and JOHN DOES 1-10,
Defendants.
ORDER
This case comes before the Court on Defendants, Troy Pearson, Laura Reeves,
Robert Larson, Terrance Martinec, Darryl Mark Hopper, Thomas Lin, Paul Hollingsworth,
Brent Bagshaw, and Todd Butler’s Motion to Enlarge Number of Depositions (Doc. 172).
Defendants, Villas at Lake Eve Condominium Association, Inc., KA and KM Development,
Inc., VK and MK Development, Inc., Eve Management, Inc., Vinod Kalidas and Lisa
Catena have joined in the motion (Doc. 176). Plaintiffs oppose the motion (Doc. 175).
Plaintiffs are members of a large, extended African-American family which
convenes annually for a weeklong reunion (Doc. 158, ¶¶ 112-13). Their 2011 reunion was
scheduled to take place at the Lake Eve Resort in Orlando, Florida (Id., ¶ 114). Plaintiffs
allege that 59 members of their family were evicted from the resort based on their race
(Id., ¶¶ 244-45). The managers/owners of the resort summoned the Orange County
Sheriff’s Department to assist in the eviction (Id., ¶ 175). Plaintiffs allege that the deputies
who responded were rude and hostile toward them (Id., ¶ 233). Now, Plaintiffs seek relief
for violations of their right to equal protection, regardless of race, as secured and
guaranteed by 42 U.S.C. §§ 1981, 1983 and 1985, the Fourth and Fourteenth
Amendments to the United States Constitution, and the laws of the state of Florida (Id., at
2). Count I of their complaint alleges intentional discrimination based on race in violation
of 42 U.S.C. § 1981 (Id., ¶¶ 110-60). Count II is an action for conspiracy to discriminate
under 42 U.S.C. § 1985(3) (Id., ¶¶ 161-254). Count III alleges that Plaintiffs had advance
reservations to stay at the resort, which reservations constituted valid and enforceable

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contracts (Id., ¶¶ 258-59). They claim that certain Defendants, on the basis of race,
breached those contracts by cancelling Plaintiffs’ reservations (Id., ¶¶ 255-62). Count IV
alleges that the deputy sheriffs who responded to the scene violated Plaintiffs’ rights
under 42 U.S.C. § 1983 and the Fourth and Fourteenth Amendments to the Constitution
(Id., ¶¶ 263-333). Count V alleges that the Sheriff of Orange County, Florida, out of
deliberate indifference or unofficial custom and policy, failed to adequately train or
supervise his deputies as to applicable anti-discrimination laws and what constitutes
unlawful discriminatory conduct (Id., ¶ 408). Plaintiffs claim that the Sheriff’s actions were
the direct, proximate and foreseeable cause of the wrongs they suffered (Id., ¶¶ 334-413).
Count VI is an action for intentional infliction of emotional distress (Id., ¶¶ 413-502).
In their case management report the parties agreed that Plaintiffs and Defendants
should be permitted to take 100 depositions per side, and that in the future, they might
seek leave of Court to take additional depositions (Doc. 130 at 12). The Court’s case
management and scheduling order restricts the parties to 10 depositions per side (Doc.
134 at 4). Now, Defendants argue that the parties should be allowed to take up to 80
depositions per side (Doc. 172, ¶ 5). As grounds, they say that after children under the
age of four are eliminated, 53 Plaintiffs remain to be deposed (Id., ¶ 4). Each Plaintiff is
claiming non-economic, mental health related damages and therefore, it is foreseeable
that there will be treating healthcare providers whose depositions will need to be taken
(Id.). And, each Plaintiff will need to be deposed concerning their separate breach of
contract action (Doc. 176 at 3).
Plaintiffs argue that Defendants have not addressed the issue of proportionality in
their motion and therefore, have failed to meet their burden under FED. R. CIV. P. 26(b)(1)
(Doc. 175 at 1). They also argue that Defendants’ motion is premature as no depositions

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have been taken (Id., at 1-2). They suggest it would be more efficient to wait until the ten
deposition limit has been reached and then, if necessary, address this issue (Id., at 2).
The Court’s local rules provide that a movant shall, inter alia, include in its motion
“a memorandum of legal authority in support of the request.” M.D. FLA. 3.01(a).
Defendants’ motion does not satisfy the requirements of Rule 3.01(a). This alone is a
good and sufficient reason to deny the motion.
When a party seeks leave of court to take more than the ten depositions allowed
by FED.R.CIV.P. 30(a)(2)(A), the Court considers the principles set out in Rule
26(b)(2)(C):
On motion or on its own, the court must limit the frequency or
extent of discovery otherwise allowed by these rules or by
local rule if it determines that: (i) the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking
discovery has had ample opportunity to obtain the information
by discovery in the action; or (iii) the proposed discovery is
outside the scope permitted by Rule 26(b)(1).
FED. R. CIV. P. 26(b)(2)(C). Defendants have not discussed the application of these
principles in their motion.
Before a motion to take additional depositions is granted, the moving party must
ordinarily justify the necessity of the depositions already taken in the case. See F.D.I.C. v.
Nason Yeager Gerson White & Lioce, P.A., Case No. 2:13-cv-208-FtM-38CM, 2014 WL
1047245 at *2 (M.D. Fla. Mar. 17, 2014); AIG Centennial Ins. Co. v. O’Neill, Case No. 0960551, 2011 WL 4116555 at *16 (S.D. Fla. Oct. 18, 2010) (“Courts have construed Rule
30(a)(2)(A), FED. R. CIV. P., to require a party seeking leave of court to exceed the tendeposition limitation to justify the necessity of each deposition previously taken without
leave of court.”); Royal v. Bahamian Ass’n, Inc. v. QBE Ins. Corp., Case No. 10-21511-

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CIV, 2010 WL 3003914 at *2 (S.D. Fla., July 29, 2010) (“[A] party seeking a court’s leave
to take more than ten depositions under Rule 30 ‘must demonstrate the necessity for
each deposition she took without leave of court pursuant to the presumptive limit of Rule
30(a)(2)(A).’”) (quoting Barrow v. Greenville Indep. Sch. Dist., 202 F.R.D. 480, 482
(N.D.Tex. 2001)); Bituminous Fire and Marine Ins. Corp. v. Dawson Land, No. 3:02-cv793-J-21TEM, 2003 WL 22012201, at *1 (M.D. Fla. Feb. 13, 2003) (A party seeking to
exceed the presumptive number of depositions must make a “particularized showing of
why the discovery is necessary.”) (quoting Archer Daniels Midland Co. v. Aon Risk
Services, Inc., 187 F.R.D. 578, 586 (D. Minn. 1999).
Some courts have denied motions to take additional depositions that were filed
before the movant exhausted the ten depositions provided by Rule 30. See Cutugno v.
Second Chance Jai Alai LLC, Case No. 5:11-cv-113-Oc-34PRL, 2012 U.S. Dist. LEXIS
144557 at *3 (M.D. Fla. Oct. 5, 2012) (“At best, Plaintiffs’ request is premature as
Plaintiffs filed their motion after only taking four depositions. Under these circumstances,
the Court is unable to evaluate whether the number of needed depositions would
necessarily exceed ten, whether the benefit of additional depositions would outweigh the
burden or expense, and whether the desired depositions would be cumulative or
duplicative.”).
Defendants’ motion is DENIED without prejudice because it is insufficient and
premature.
DONE and ORDERED in Orlando, Florida on October 17, 2016.

Copies furnished to Counsel of Record

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