McElwee v. Anco Insulations, Inc. et al

Filing 100

ORDER AND REASONS granting 95 Motion to Compel. IT IS FURTHER ORDERED that Plaintiff appear for deposition on April 1, 2024, as scheduled. Signed by Magistrate Judge Donna Phillips Currault on 3/26/2024. (alm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT J. MCELWEE

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CIVIL ACTION

VERSUS

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NO. 23-3137

ANCO INSULATIONS, INC., ET AL.

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SECTION “G” (2)

ORDER AND REASONS
Pending before me on an expedited basis is Defendant Huntington Ingalls Incorporated’s
Motion to Compel Plaintiff’s Deposition. ECF Nos. 95-97. Plaintiff timely filed an Opposition
Memorandum. ECF No. 98. No party requested oral argument in accordance with Local Rule
78.1, and the court agrees that oral argument is unnecessary.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, the Motion to Compel is GRANTED for the reasons stated herein.
I.

BACKGROUND
Plaintiff filed suit on March 7, 2023, against Defendants alleging exposure to asbestos

which resulted in mesothelioma. ECF No. 1-1. Defendants removed the case to this court on
August 4, 2023. ECF No. 1. The January 17, 2024 Scheduling Order establishes a November 4,
2024 discovery deadline. ECF No. 69.
On March 19, 2024, Defendant Huntington Ingalls Incorporated filed this motion to compel
alleging that Plaintiff has twice cancelled his scheduled deposition without justification after
lengthy efforts to schedule same. ECF No. 95-1 at 2-3. Avondale argues that the inability to
depose Plaintiff is prejudicial to its defense, including denying it the opportunity to determine
whether there are other potentially responsible parties. Id. at 5. It also argues that the aggressive
form of mesothelioma requires proceeding expeditiously. Id. at 6. Avondale asks for an order
directing Plaintiff to appear for deposition within 15 days or be sanctioned. Id.
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In response, Plaintiff states that scheduling has been difficult due to Plaintiff’s health issues
and doctor’s appointments. ECF No. 98 at 1. Plaintiff indicates that his deposition is currently
scheduled for April 1, 2024 and, therefore, the motion is moot. Id.
II.

ANALYSIS
Defendant’s request to depose Plaintiff is eminently reasonable and well within the

parameters of Rule 26. While the Court is mindful of the difficulties faced by Plaintiff due to his
health conditions, this matter has been pending for over a year and the parties must proceed with
discovery.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that the Motion to Compel (ECF No. 95) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff appear for deposition on April 1, 2024, as

scheduled.
New Orleans, Louisiana, this 26th day of March, 2024.
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DONNA PHILLIPS CURRAULT
UNITED STATES MAGISTRATE JUDGE

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