Young v. Ultra-Chem, Inc.

Filing 20

MEMORANDUM AND ORDER granting in part and denying in part 18 Motion for Order. Please see order for important revisions to the scheduling order. Signed by Magistrate Judge James P. O'Hara on 6/9/2015.Mailed to pro se party Dennis Ray Young by regular mail (mmg)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DENNIS RAY YOUNG,
Plaintiff,
v.

Case No. 14-2592-CM-JPO

ULTRA-CHEM, INC.,
Defendant.

ORDER
The pro se plaintiff, Dennis Ray Young, brings this lawsuit against the defendant,
Ultra-Chem, Inc., for employment retaliation.1 The case is before the undersigned U.S.
Magistrate Judge, James P. O’Hara, on defendant’s motion for an order requiring plaintiff
to appear for deposition, for sanctions and for relief from the scheduling order. (ECF
doc. 18). For the reasons discussed below, the motion is granted in part and denied in
part.
Plaintiff filed his complaint on November 20, 2014. On January 26, 2015, this
court entered a scheduling order that set June 15, 2015, as the discovery deadline.2 On
May 27, 2015, the defendant provided notice that the plaintiff would be deposed on June

1

ECF doc. 1.

2

ECF doc. 13.

O:\ORDERS\14-2592-CM-18.docx

3, 2015.3 Because plaintiff objected to being deposed at the defendant’s counsel’s office,
arrangements were made for the deposition to take place at the United States District
Courthouse in Kansas City, Kansas at 2:00 P.M..
Plaintiff arrived at the courthouse prior to the 2:00 P.M. start time and met the
court reporter at the locked doors of the conference room as designated in the deposition
notice. Defendant’s counsel admits that he was late for the deposition, but claims that he
arrived at 2:10. He claims that once he arrived, he met the court reporter who informed
him that the plaintiff left at 2:03.4 Defendant’s counsel states that the court reporter
suggested that plaintiff wait at least 15 minutes for defendant’s counsel, but that plaintiff
left anyway.
Defendant’s counsel stated that he attempted to call and email the plaintiff to ask
him to return. At 2:46, plaintiff began an email correspondence with defendant’s counsel
in which the plaintiff refused to return to have his deposition taken.
In its motion, defendant’s counsel “recognizes that his tardiness contributed to this
situation and takes responsibility for his part therein and for this reason does not seek
severe sanctions against the pro se plaintiff.”5 Defendant’s counsel also notes that he is

3

ECF doc. 17.

4

Defense counsel did not provide an affidavit from the court reporter, but simply
relayed the events in his motion.
5

ECF doc. 18 at 2.

O:\ORDERS\14-2592-CM-18.docx

2

out of town June 8-12, and thus would need time past the scheduling order to take
plaintiff’s deposition.
The plaintiff responds that he arrived early and that defendant is at fault for being
late.6

Plaintiff also argues that defendant waited until the end of the discovery to

schedule his deposition and that the defendant should be held responsible for those
decisions.
While the court understands plaintiff’s position, the fact remains that it is
important for the deposition to take place. Although it is unfortunate that defense counsel
was late, it is also unfortunate that plaintiff waited only a few minutes for the defense
counsel to arrive. As such, defendant’s motion for an order requiring plaintiff to appear
for deposition is granted. Because defense counsel is out of town until June 12, it is
ordered that the deposition take place the week of June 15 and no later than June 19,
2015. The discovery deadline is modified for this purpose only. Further, the proposed
pretrial deadline of June 22, 2015, is now June 29, 2015. The pretrial conference
originally set for July 2, 2015, is now July 13, 2015 at 10:30 a.m. All other deadlines set
forth in the scheduling order (ECF doc. 13), including the August 3, 2015, dispositive
motion deadline and the March 17, 2016, trial shall remain the same.

6

ECF doc. 19.

O:\ORDERS\14-2592-CM-18.docx

3

Defendant acknowledges that he was late for the deposition and that he is dealing
with a pro se plaintiff. For those reasons, the motion for sanctions is both unreasonable
and denied.
IT IS THEREFORE ORDERED:
1. Defendant’s motion for an order requiring plaintiff to appear for deposition, for
sanctions and for relief from the scheduling order (ECF doc. 18) is granted in part and
denied in part.
2. The parties shall bear their own expenses and attorney fees incurred in
connection with this motion.
Dated June 9, 2015 at Kansas City, Kansas.

s/ James P. O’Hara
James P. O’Hara
U. S. Magistrate Judge

O:\ORDERS\14-2592-CM-18.docx

4