La Bamba Licensing, LLC v. La Bamba Authentic Mexican Cuisine, Inc.

Filing 40

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 9/14/2017, DENYING Defendant's 35 Motion. Request to take deposition of Plaintiff is DENIED. Request to take expert witness depositions is DENIED AS MOOT. Request to hold in abeyance the ruling on the Motion for Summary Judgment is DENIED. cc: Counsel(RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-527-CRS-CHL
LA BAMBA LICENSING, LLC,

Plaintiff,

v.
LA BAMBA AUTHENTIC MEXICAN CUISINE, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is a “Notice of Motion for Leave to Take Plaintiff’s Depositions” (the
“Motion”) (DN 35) filed by defendant La Bamba Authentic Mexican Cuisine, Inc. (“defendant”).
Plaintiff La Bamba Licensing, LLC (“plaintiff”) filed a response. Defendant did not file a reply.
Therefore, the Motion is ripe for review.
I.

BACKGROUND
In the Motion, defendant requests that the Court (1) grant it leave to take the deposition

of plaintiff; (2) grant it leave to take the deposition(s) of the expert witness(es) designated by
plaintiff; and (3) enter an order holding in abeyance plaintiff’s Motion for Summary Judgment
(DN 27) until the depositions requested in (2) and (3) are taken. (DN 35 at 1-2.)
In response, plaintiff first notes that defendant has not provided any factual or legal
support for its requests. (DN 37 at 1.) Additionally, plaintiff asserts, among other things, that the
fact discovery period was from November 2016 to June 17, 2017 and that defendant conducted
no depositions and very limited discovery during that time; also defendant has provided no
justification for this failure or any reason why it should be granted leave to conduct depositions
that should have already been conducted. (Id. at 2.) Plaintiff also notes that if defendant
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believed that additional discovery was needed before it could respond to plaintiff’s Motion for
Summary Judgment, Rule 56(d) of the Federal Rules of Civil Procedure requires that defendant
file an affidavit indicating its need for discovery, and an explanation of the relevant material
sought and why the information has not been previously discovered. (Id.) No such affidavit was
filed; instead, defendant simply filed a response. (Id.; see also DN 29 [response to Motion for
Summary Judgment].)1
Plaintiff also points out that defendant’s request that it be granted leave to take expert
witness depositions does not make sense because (1) no expert witnesses have been identified;
and (2) the expert discovery deadline is January 17, 2018. (Id. at 4.)
Finally, plaintiff touches upon the issue of holding the Motion for Summary Judgment in
abeyance and the location of the deposition of a corporate representative if the Motion is granted.
(Id. at 2-5.)
II.

DISCUSSION
A.

Request to Take the Deposition of Plaintiff

Fact discovery in this matter closed on June 17, 2017. (DN 16 at 2.) Neither party
requested an extension of the fact discovery deadline. Moreover, defendant does not give any
reason for its eleventh hour request to take the deposition of plaintiff. Consequently, the Court
will deny this request. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good
cause and with the judge’s consent.”).

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Plaintiff notes that, if the Motion for Summary Judgment is granted, it would resolve the issue of liability in this
matter. (DN 37 at 2.) The issue of damages would remain.

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B.

Request to Take the Deposition(s) of Expert Witnesses(es)

Putting aside the fact that according to plaintiff, no expert witness has been designated by
either side, there is no reason for the Court to grant this request. As plaintiff pointed out, the
deadline for expert witness discovery is January 17, 2018; as such, defendant does not need
permission from the Court to take expert witness discovery. (DN 16.) Therefore, the Court will
deny this request as moot.
C.

Request to Hold Ruling on Motion for Summary Judgment in Abeyance

Given the rulings herein related to depositions, there is no reason to hold the Motion for
Summary Judgment in abeyance. Therefore, the Court will deny this request .
III.

CONCLUSION
Accordingly,
IT IS ORDERED that the Motion (DN 35) is DENIED.
Specifically, defendant’s request to take the deposition of plaintiff is DENIED; the

request to take expert witness deposition(s) is DENIED AS MOOT; and the request to hold in
abeyance the ruling on the Motion for Summary Judgment is DENIED .

cc: Counsel of record

Colin Lindsay, MagistrateJudge
United States District Court

September 14, 2017

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