B&D Nutritional Ingredients v. Unique Bio Ingredients, LLC et al

Filing 93

ORDER denying 92 Plaintiff's Motion to Compel. Please see Order for details. Signed by Magistrate Judge Barry S. Seltzer on 2/13/2017. (pb00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-62364-CIV-COHN/SELTZER
B&D NUTRITIONAL INGREDIENTS, INC.,
a California corporation,
Plaintiff,
vs.
UNIQUE BIO INGREDIENTS, LLC, d/b/a
UNIQUE BIOTECH USA, a Florida limited liability
company, JAIRO ESCOBAR, an individual,
LUIS ECHEVERRIA, an individual,
RATNA SUDHA MADEMPUDI, an individual,
and UNIQUE BIOTECH LIMITED, an
Indian corporation,
Defendants.
________________________________/
ORDER
THIS CAUSE has come before the Court pursuant to Plaintiff’s Motion to Compel
Depositions [DE 92], in which Plaintiff asks the Court to enter an order compelling
Defendants Ratna Sudha Madempudi, Unique Bio Ingredients, LLC and Unique Biotech
Limited to appear for deposition on a date and time agreed to by the parties. The parties
have been unable to reach an agreement on a date for the depositions to take place.
Plaintiff also asks the Court to allow the depositions to take place after the close of
discovery (if necessary) and to preemptively deny a yet-unmade request by Defendants
to extend the discovery deadline.
The Federal Rules of Civil Procedure and the Local Rules govern the scheduling of
depositions, as well as the imposition of sanctions for failure to attend depositions. The
Local Rules proclaim “the Court’s expectation that counsel will seek to accommodate their

fellow practitioners, including in matters of scheduling, whenever reasonably possible and
that counsel will work to eliminate disputes by reasonable agreement to the fullest extent
permitted by the bounds of zealous representation and ethical practice.” Local Rules for
the Southern District of Florida, Introductory Statement. The Local Rules also prescribe
the method and timing of noticing depositions:
(h) Reasonable Notice of Taking Depositions. Unless
otherwise stipulated by all interested parties, pursuant to
Federal Rule of Civil Procedure 29, and excepting the
circumstances governed by Federal Rule of Civil Procedure
30(a), a party desiring to take the deposition within the State of
Florida of any person upon oral examination shall give at least
seven (7) days’ notice in writing to every other party to the
action and to the deponent (if the deposition is not of a party),
and a party desiring to take the deposition in another State of
any person upon oral examination shall give at least fourteen
(14) days’ notice in writing to every other party to the action
and the deponent (if the deposition is not of a party).
Failure to comply with this rule obviates the need for protective
order.
Notwithstanding the foregoing, in accordance with Federal
Rule of Civil Procedure 32(a)(5)(A), no deposition shall be
used against a party who, having received less than eleven
(11) calendar days’ notice of a deposition as computed under
Federal Rule of Civil Procedure 6(a), has promptly upon
receiving such notice filed a motion for protective order under
Federal Rule of Civil Procedure 26(c)(1)(B) requesting that the
deposition not be held or be held at a different time or place
and such motion is pending at the time the deposition is held.
Local Rule 26.1(h), Local Rules for the Southern District of Florida. Finally, the Federal
Rules of Civil Procedure allow for the imposition of sanctions, on motion, if “a party or a
party’s officer, director, or managing agent – or a person designated under Rule 30(b)(6)
or 31(a)(4) – fails, after being served with proper notice, to appear for that person’s
deposition.” Fed. R. Civ. P. 37(d)(1)(A).
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Although the Court expects that the parties will cooperate in scheduling one
another’s depositions, it cannot compel such cooperation or impose sanctions for any
party’s failure to do so. When such cooperation proves impossible, a party seeking to
depose an opposing party may properly notice the deposition and then, if necessary, move
to compel and/or to impose sanctions in the event that the opposing party or its
representative fails to appear or obtain a protective order. In addition, inasmuch as the
depositions have not yet been scheduled, the Court cannot determine whether additional
time (beyond the discovery cut-off) is warranted to complete the depositions. Finally, the
Court cannot decide any request to enlarge discovery that has not yet been made.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Compel Depositions [DE 92]
is DENIED.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 13th day of
February 2017

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