Hill Dermaceuticals, Inc. v. Anthem, Inc.

Filing 99

ORDER denying without prejudice 79 motion for discovery. Signed by Magistrate Judge Thomas B. Smith on 10/20/2016. (EC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HILL DERMACEUTICALS, INC.,
Plaintiff,
v.

Case No: 6:16-cv-833-Orl-40TBS

ANTHEM, INC.,
Defendant.
ORDER
This case comes before the Court without oral argument on Plaintiff, Hill
Dermaceuticals, Inc.’s Motion for Additional Depositions of Defendant, Anthem, Inc. (Doc.
79), and Defendant Anthem, Inc.’s Opposition to Plaintiff’s Motion for Additional
Depositions of Defendant Anthem, Inc. (Doc. 98). For the reasons that follow, the motion
is DENIED without prejudice.
“In a motion or other application for an order, the movant shall include … a
memorandum of legal authority in support of the request.” M.D. FLA. Rule 3.01(a). The
motion is insufficient because it does not contain a memorandum of law.
The motion is premature because Plaintiff has not used the ten depositions
permitted by FED. R. CIV. P. 30(a)(2)(A)(i) and the Case Management and Scheduling
Order (Doc. 32). See Cutugno v. Second Chance Jai Alai LLC, Case No. 5:11-cv-113-Oc34PRL, 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.”).
Plaintiff has not justified the necessity of the depositions, if any, that have already
been 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. 09-60551, 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 ten-deposition 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-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)).
Plaintiff has not made a “particularized showing of why the discovery is
necessary.” Bituminous Fire and Marine Ins. Corp. v. Dawson Land, No. 3:02-cv-793-J21TEM, 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).
When a party seeks leave of court to take more than the ten depositions allowed
by rule the Court considers the factors 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

-2-

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). Plaintiff failed to address these factors in its motion.
DONE and ORDERED in Orlando, Florida on October 20, 2016.

Copies furnished to Counsel of Record

-3-