Sibley v. Choice Hotels International, Inc. et al
Filing
84
ORDER denying 78 Motion to Compel; denying 83 Motion for Extension of Time to Complete Discovery. For the reasons set forth in the attached Order, Plaintiff's motions set forth in Docket Entries Nos. 78 and 83 are denied in their entir ety. All document and written discovery is deemed closed. Counsel shall complete discovery in the manner and the time frame as set forth in the attached Order. Absent good cause and the taking of the parties' depositions, there shall be no further extensions. So Ordered by Magistrate Judge Anne Y. Shields on 12/22/2015. (Casalini, Rosalinde) (Main Document 84 replaced on 12/22/2015) (Imrie, Robert).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRECIA LORELLE SIBLEY,
Plaintiff,
ORDER
CV 14-634 (JS)(AYS)
-againstCHOICE HOTELS INTERNATIONAL, et al.,
Defendants.
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APPEARANCES:
BRIAN L. PONDER LLP
BY: BRIAN L. PONDER, ESQ.
Attorneys for Plaintiff
200 Park Avenue Suite 1700
New York, New York 07666
GENOVA BURNS GIANTOMASI WEBSTER LLC
BY: JENNIFER BOREK, ESQ.
Attorneys for Defendants
494 Broad Street
Newark, New Jersey 07102
ANNE Y. SHIELDS, United States Magistrate Judge:
This is a diversity case in which Plaintiff claims to have been injured by bed bugs during
a one night stay at Defendants’ hotel (the “Hotel”). The Hotel is identified as being located at
270 West Jericho Turnpike in Huntington Station, New York. Plaintiff alleges a single claim of
negligence resulting in physical and emotional harm. See Docket Entry (“DE”) 1.
While this would seem to be a straightforward action, counsels’ continual bickering and
litigation over minor filing deadlines, and discovery disputes focused on form instead of
substance has unnecessarily complicated the matter. When this case was transferred to this Court
there were over 70 docket entries in the case. Presently, there are 83 docket entries, and the
pending motions to compel and extend discovery are the tenth and eleventh motions interposed.
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As discussed below, the discovery sought and the methods used by Plaintiff are
completely disproportional and ill-suited to this matter. Counsel have proven that they are unable
to confer and arrive at a mutually convenient way of completing paper discovery so that this case
can move forward to depositions and dispositive motion practice and discovery. Accordingly, the
motion to compel (DE 78) is denied in its entirety. As to the motion to extend discovery (DE 83),
the court declines to grant Plaintiff’s unilateral request for an extension. Instead, counsel are
directed to comply with this Court’s final order or discovery as stated in detail below.
BACKGROUND
I.
Prior Proceedings
This case was commenced on January 29, 2014, and was transferred to this Court on
March 26, 2015. On June 24, 2015, in an effort to reign in the continuing motion practice and
encourage counsel to engage in focused discovery, this Court called both parties in for a
conference. At the conference the Court first disposed of five pending motions. See DE 74 at 34. The court noted Defendants’ argument that they did not own the Hotel at the time of Plaintiff’s
stay and therefore cannot be responsible for the injuries alleged. Defendants named the entity
that owned the Hotel at the relevant time. DE 74 at 2. When asked whether he intended to name
Roslyn Properties as a Defendant, Plaintiff’s counsel stated that he could not name this
potentially responsible party, because to do so would “destroy diversity.” Id.
In light of the injuries alleged and Defendants’ position as to liability, the Court described
the type of documents Defendants should produce in order to prove any claim of non-liability.
Counsel agreed to adjourn the proceedings in open court and to confer outside of the courtroom,
for the first time, as to an appropriate discovery schedule.
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Following the parties’ off the record meeting, they presented the Court with a proposed
discovery worksheet. That worksheet, which the Court accepted as the discovery scheduling
order herein, provided for the parties to complete pre-settlement discovery by July 10, 2015. The
Court ordered fact discovery to be completed by November 30, 2015. DE 74 at 3. Plaintiff was
directed to provide medical authorizations, and Defendants were directed to produce documents
establishing ownership of the Hotel at the time of Plaintiff’s stay. DE 74 at 3. Additionally,
Defendants were to produce documents in support of any claim that they are not liable for
injuries sustained by guests who stayed at the Hotel prior to their ownership (if any), as well as
any documents relevant to the issue of assumption of liability and/or indemnification by other
entities. Id.
Following the June 25, 2015 conference Defendants filed an amended answer setting
forth, for the first time in formal pleadings, the identity of owner the Hotel at the time of
Plaintiff’s alleged injury. Consistent with Defendants’ statement at the June status conference,
that entity was identified as Roslyn Properties, LLC, doing business as Huntington Country Inn
(“Roslyn Properties”). DE 76 ¶¶ 5, 10. To date, Roslyn Properties has neither been named as a
Defendant nor impleaded as a potentially responsible party in this matter.
The parties thereafter appeared for a status conference on September 16, 2015, where
they continued to dispute over discovery. This Court directed counsel, once again, to work
together and to confer as to any discovery disputes arising out what counsel were reminded was a
simple negligence action arising out of a one-time event. The Court also ordered a briefing
schedule to be followed in the event that the parties could not work out their discovery disputes.
Given counsels’ past conduct, it was not surprising that they could not reach agreement as to any
discovery dispute. Thus, on October 21, 2015, Plaintiff filed the present motion to compel
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discovery. See DE 78. In addition to arguing the insufficiency of Defendants’ Rule 26
disclosures, Plaintiff’s motion seeks to compel further responses to interrogatories, requests for
production of documents and requests for admission. Plaintiff alleges that all information and
documents sought are “reasonably calculated to lead to the discovery of admissible evidence”
and that Defendants’ responses thus far are incomplete. DE 78.
DISCUSSION
I.
Legal Standards
The scope of discovery is set forth in Rule 26 of the Federal Rules of Civil Procedure.
That Rule has been amended, on several occasions, to reflect evolving judgments as to the proper
scope of discovery. Over time, these amendments have been aimed at striking the proper
balance between the need for evidence, and the avoidance of undue burden or expense.
In 1999, Rule 26(b)(1) stated that “[p]arties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the pending action, whether it
relates to the claim or defense of the party seeking discovery or to the claim or defense of any
other party.” Fed. R. Civ. P. 26(b)(1) (1999). In 2000, in an effort to curb over-discovery that
took advantage of tying the term “subject matter” to the definition of the scope of discovery,
Rule 26 was amended. See Fed. R. Civ. P. 26(b)(1), Advisory Comm. Notes (2000). That
amendment required a party to show “good cause” before obtaining discovery that is “relevant to
the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1).
Most recently, as of December 1, 2015, Rule 26 has again been amended. The December
2015 amendment to Rule 26 now defines the scope of discovery to consist of information that is
relevant to the parties’ “claims and defenses.” Thus, the discretionary authority to allow
discovery of “any matter relevant to the subject matter involved in the action” has been
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eliminated. Additionally, the current version of Rule 26 defines permissible discovery to consist
of information that is, in addition to being relevant “to any party's claim or defense,” also
“proportional to the needs of the case.” Id.
While proportionality factors have now been incorporated into the Rule 26(b)(1)
definition, those factors were already a part of Federal discovery standards, appearing in Rule
26(b)(2)(C)(iii). Those proportionality factors have now been restored to the place of their
intended importance by their incorporation into the very definition of permissible discovery. See
Fed. R. Civ. P. 26(b)(1), Advisory Comm. Notes (2015) (noting that amendment “restores the
proportionality factors to their original place in defining the scope of discovery,” and “reinforces
the Rule 26(g) obligation of the parties to consider these factors in making discovery requests,
responses, or objections”).
The specific proportionality factors to be assessed when considering the scope of
discovery are:
The importance of the issues at stake in the litigation;
The amount in controversy;
The parties relative access to relevant information;
The parties’ resources;
The importance of discovery in resolving issues; and
Whether the burden or expense of the discovery is outweighed by the benefit
Fed. R. Civ. P. 26(b).
Notably absent from the present Rule 26 is the all too familiar, but never correct, iteration
of the permissible scope discovery as including all matter that is “reasonably calculated to lead
to” the discovery of admissible evidence. This language was never intended to define the scope
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of discovery, but was intended only to make clear that the discovery is not limited by the concept
of admissibility. Unfortunately, the “reasonably calculated” language has often been employed
to refer to the actual scope of discovery. Clearing up this misinterpretation, the new Rule
disposes of this language, ending the incorrect, but widely quoted, misinterpretation of the scope
of discovery. The present definition of the scope of discovery continues to refer to admissibility,
but only by stating that “[i]nformation within the scope of discovery need not be admissible in
evidence to be discoverable.” Fed. R. Civ. P. 26(b).
Overarching the interpretation of Rule 26, and indeed all of the Federal Rules of Civil
Procedure, is the standard referred to in Rule 1 thereof. That Rule, as amended in December of
2015, requires that the Federal Rules of Civil Procedure “be construed, administered, and
employed by the court and the parties to secure the just, speedy, and inexpensive determination
of every action and proceeding. “ Fed. R. Civ. P. 1 (emphasis added). See Comment to 2015
Amendment to Rule 1 (noting that “the parties share the responsibility” to employ the rules
consistently with the standards of Rule 1, and that “[e]ffective advocacy is consistent with -- and
indeed depends upon -- cooperative and proportional use of procedure”) (emphasis added).
Judicial involvement has long been recognized as critical to the effective management of
discovery. Thus, as early as 1983, the Advisory Committee explained that “[t]he rule
contemplates greater judicial involvement in the discovery process and thus acknowledges the
reality that it cannot always operate on a self-regulating basis.” Committee Notes (2015)
(referring to 1983 notes). Again in 2000, the Advisory Committee noted that it had been
“informed repeatedly by lawyers that involvement of the court in managing discovery is an
important method of controlling problems of inappropriately broad discovery”) (Committee
Notes 2000). The 2015 amendment revisits this theme, noting that the amendment “again reflects
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the need for continuing and close judicial involvement in the cases that do not yield readily to the
ideal of effective party management,” including that cases where “the parties fall short of
effective, cooperative management on their own.” Advisory Comm. Notes 2015.
With these standards and obligations in mind, the Court turns to the merits of the present
motion to compel.
II.
Disposition of the Motion
As noted, Plaintiff objects to Defendants’ Rule 26 disclosures as well as their responses
to documents requests and written discovery, including responses to interrogatories and requests
to admit. The Court addresses each category of alleged insufficiency in turn.
A.
Adequacy of Rule 26 Response: Insurance Agreement
Plaintiff’s quarrel with Defendants’ Rule 26 disclosure is focused on whether or not
Defendants have properly disclosed the existence of insurance information. In response to the
requirement that Defendants produce “any insurance agreement under which an insurance
business may be liable to satisfy all or part of a possible judgement in the action or to indemnify
or reimburse for payments made to satisfy the judgement,” Defendants responded that “no such
insurance agreement exists.” Plaintiff finds this response objectionable and inconsistent with
Defendants’ later production (in response to Plaintiff’s Document Request No. 23) referencing
and producing an insurance policy bearing Bates Number Stamp D00130-D00136. See DE 80 at
13.
Contrary to Plaintiff’s position, the Court finds no inconsistency in Defendants’
responses. If Plaintiff’s counsel read the language of both Defendant’s responses and his own
document requests he would see that Defendants are taking the position that they are not in
possession of insurance coverage within the scope of Rule 26, because they did not own the
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Hotel at the time of the injury. Defendant’s response to Document Request No. 23, on the other
hand, is addressed to the broad request that Defendants produce “a copy of any and all insurance
contracts to which you are a party.” While the Document Request at issue could certainly have
been objected to on the ground of overbreadth, Defendant made no such objection, but instead
produced an insurance policy. In any event, Defendant responded properly to the Rule 26
insurance information requirement as well as Plaintiff’s document request. Accordingly, the
Court denies the motion to hold Defendant’s Rule 26 disclosure insufficient.
B.
Interrogatories
Plaintiff’s motion asserts that Defendants have failed to answer interrogatories served
under Rule 33. See DE 80 at 14-15. In support of this contention, Plaintiff does little more than
list approximately 250 interrogatories or sub-parts thereof that Plaintiff claims Defendants
“failed to answer.” With the exception of a single interrogatory referred to in Plaintiff’s
memorandum of law, as set forth below, Plaintiff does not explain how or why the answers were
deficient or give any support for his assertion. Instead, she simply submits all of the
interrogatories and responses for the Court to review, along with a long numbered list of the
approximately 250 questions that Defendants have not answered.
The only particular interrogatory responses identified as insufficient are Defendants’
responses to interrogatories numbers 13(a), (b) and (c). Those interrogatories ask whether
Defendants, or anyone acting on their behalf, “have any information that Plaintiff made any
admission or declaration against interest that in any way would tend to support your version of
this case.” With respect to any response, Defendants are asked to provide:
the time and place of any such admission,
the substance of such admission,
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“the names, nicknames, work mailing address, work physical address, date of
birth, work telephone number(s), cellular telephone number(s), all email
address(es) and relationship to Defendants of all persons in whose presence such
admission or declaration was made.”
After making objections based, in part, upon the impermissible number of interrogatories
posed, Defendants responded, “none.” The Court interprets Defendants’ response as stating that
they are not in possession of any statement made by the Plaintiff. To the extent that this is true,
Defendants need make no further response. To the extent that Defendants are in possession of
any statement of the Plaintiff (and it does not appear that they are), they may simply identify that
statement by setting forth the substance of the statement, when it was made, and to whom it was
made. To the extent that Defendants identify any statements made by Plaintiff, those statements
may be explored during Plaintiff and Defendants’ depositions. The remainder of information
sought in Interrogatory Number 13 and its subparts is not within the scope of permissible
discovery and Plaintiff’s request for any further written response to Interrogatory No. 13 is
denied.
As to Plaintiff’s blanket objections to all listed interrogatories, the failure to set forth
particular deficiencies in responses to particular questions is enough to require denial of the
motion. First, Plaintiff’s motion violates Local Civil Rule 37.1, which requires the motion or
application to set forth the “grounds upon which the moving party is entitled to prevail as to each
request or response.” See Local Rule 37.1. Instead of listing the questions and responses at issue,
as Local Civil Rule 37.1 of this Court requires, Plaintiff simply provides a list of numbers of
questions that are alleged not to have been answered. Plaintiff compounds her disregard of the
rules by sending the Court a box full of exhibits, expecting the Court to match up the questions
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to the numbers listed in the motion, without so much as identifying what exhibits she is
referencing throughout the motion.
The Court also denies the motion on the grounds that Plaintiff’s request far exceeds the
number of permissible interrogatories allowed to be propounded. Moreover, even if construed as
not violative of the limitation on the number of interrogatories (by not counting sub-parts), the
number of interrogatories posed is, in any event, certainly disproportional to the discovery that
should suffice in this negligence action. Nonetheless, despite the broad nature of the
interrogatories, Defendants’ responses make clear, inter alia, that none of Defendants’ employees
were present at the Hotel at the time of the incident, Defendants have interviewed no one
concerning the incident, they have obtained no written statements from anyone regarding the
incident, they have no photographs, films or videos of the incident, they have no diagrams,
reproductions or models of any place or thing concerning the incident. The responses further
make clear that Choice Hotels International, Inc. “does not own, operate or manage,” the Hotel,
had no “involvement with the Hotel during the relevant time period,” had not inspected the Hotel
with respect to the subject matter of the complaint, and has made no investigation of Plaintiff’s
alleged injury.
The Court’s review of Defendants’ responses makes clear that while they have stated
certain objections to Plaintiff’s interrogatories, Defendants have provide more than enough
information in response thereto. It is additionally worth noting that Plaintiff has violated Local
Civil Rule 26.4, which requires cooperation among counsel in discovery. Specifically, that rule
states that:
(a) Counsel are expected to cooperate with each other, consistent with the
interests of their clients, in all phases of the discovery process and to be courteous
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in their dealings with each other, including in matters relating to scheduling and
timing of various discovery procedures.
Here, Defendants repeatedly told Plaintiff they did not possess information and therefore
could not answer questions the way they were addressed. Instead of making any attempt to
clarify questions, Plaintiff filed motions. See DE 80, Ex. 15; see also DE 80 at 4-5. Indeed, this
Court notes how little Plaintiff has worked with Defendants to ensure that discovery proceeded
expeditiously. In her own motion, Plaintiff includes correspondence between her counsel and
Defendants. DE 80 at 4-6. A review of such correspondence reveals that Defendants alerted
Plaintiff that she had not identified what was deficient with each response. See DE 80 at 5; see
also DE 80, Ex. 15 at 1 (Defendants alert Plaintiff that they have not identified the nature or
substance of the alleged deficiency with respect to each discovery response). Defendants even
went so far as to set forth examples of how they answered, requesting clarification as to the
grounds for Plaintiff’s claims of deficiency. Instead of working with Defendants to clarify issues,
Plaintiff’s counsel rigidly responded that, “[t]he issues are voluminous and I wish you would’ve
expressed any issues sooner because now they will likely have to be addressed via motion
practice given the scheduling order that I must follow.” DE 80 at 5. Although Plaintiff recited
some of the Federal Rules of Civil Procedure in the same motion, she did not even suggest
consenting to an extension of time and working together to clarify the issues at hand and seek a
joint extension of time pursuant to the Local Rules. See E.D.N.Y. Local Civ. R. 16.2 (“In any
case referred to a magistrate judge by a district judge, the magistrate judge may make scheduling
orders pursuant to Federal Rule of Civil Procedure 16(b), and may modify for good cause shown
scheduling orders previously entered.”).
For the foregoing reasons, the Court denies the request to supply any further responses.
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C.
Document Requests
Plaintiff seeks to have the Court compel Defendants to produce documents in response to
approximately 87 document requests. Plaintiff’s motion states only that “Defendants improperly
claim privilege to at least one of Plaintiff’s requests.” DE 80 at 15-16. The Plaintiff does not
indicate the requests to which she refers, gives no support for her allegations, and does not assert
any other grounds on why the Court should compel the production of such documents. Instead,
Plaintiff simply re-prints all document requests and responses. Like the motion to compel
interrogatory responses, the motion to compel responses to document requests is accompanied by
nothing more than a list of the document requests that Defendants have allegedly failed to
answer.
Like the motion to compel interrogatory responses, Plaintiff’s motion to compel further
responses to document requests is denied for failure to comply with Local Rules 37.1 and 26.4.
Even putting aside such non-compliance, and upon consideration of the merits, the Court denies
the motion. While Defendants have stated their objections to the requests, they have also
responded in a manner that makes clear that they are not in possession of documents in response
to most requests. Upon review, the Court finds Defendants’ responses clear and sufficient. Thus,
in addition to the grounds set forth above in denial of Plaintiff’s motion to compel responses to
interrogatories (Rules 37.1 and 26.4) the Court denies the motion to compel production of
additional unnamed documents on the ground that Defendants have made clear that no such
documents exist.
C.
Requests for Admission
Next, Plaintiff asserts that Defendants’ responses to numerous Requests for Admission
were evasive or incomplete. Again, Plaintiff provides a long list of allegedly incomplete or
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evasive responses, but fails to state specifically how each of the above exceptions she listed
applies to the responses she asserts were evasive or incomplete. The motion to compel further
responses to Requests for Admission is denied first, on the ground of Plaintiff’s violation of local
Rules 37.1 and 26.4.
Additionally, the Court has reviewed both the requests and responses and finds that
Plaintiff’s requests are, to say the least, inconsistent with the requirements of Rule 1 as set forth
above. Thus, in tedious fashion, Plaintiff’s requests for admission continuously ask each question
twice, once in the positive form, and once in the negative. More often than not, the requests
contain compound questions and ask for admission of information that Defendants could not
possibly know. For example, Plaintiff’s Requests to Admit include the following requests:
Admit that on July 29, 2012, Plaintiff went to sleep on the bed in the Hotel room, along
with her friend.
Admit that on July 29, 2012, Plaintiff did not go to sleep on the bed in the Hotel room,
along with her friend.
Admit that on July 29-30, 2012, Plaintiff was bitten all over her body by bed bugs at your
Hotel.
Admit that on July 29-30, 2012, Plaintiff was not bitten all over her body by bed bugs at
your Hotel.
Admit that on July 30, 2012, Plaintiff awakened and left your Hotel and went to work.
Admit that on July 30, 2012, Plaintiff did not awaken and leave your Hotel and went to
work.
Admit that on July 30, 2012, Plaintiff's friend called her and said that he saw bugs in the
Hotel bed.
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Admit that on July 30, 2012, Plaintiff’s friend did not call her and said that he saw bugs
in the Hotel bed.
Similar questions raised in the same format continue in the same manner throughout the
entire 92 separately stated Requests for Admissions. See DE 80, Ex. 10.
To put this as simply as possible, Plaintiff’s extensive requests to admit, especially when
considered in conjunction with the extensive interrogatories and document requests, are
completely ill-suited and disproportional to the needs of discovery in this matter. The request to
provide additional responses to these unclear and burdensome requests is denied.
III.
Order for Final Discovery
As stated by this Court above and in prior proceedings, this is a simple action. Either
Plaintiff was injured or not, and either Defendants were negligent or not. Such an action calls for
the use of limited targeted discovery that is proportional to the needs of the case. Information
within the permissible scope of discovery includes information as to injuries, including medical
records and photographic evidence of injury (if any), as well as information going to Defendants’
ownership or control of the Hotel and notice of any bedbug infestation.
While the issue of injury is important to Plaintiff, the issues in this matter are not so farreaching, and the injuries possibly sustained are not so great, as to justify continued extensive
and expensive written pretrial discovery. Importantly, the extreme burden or expense of the
written discovery propounded is clearly outweighed by the benefit of obtaining information by
the use of these written discovery techniques. Plaintiff’s counsel’s conduct demonstrates that
instead of asking clear questions aimed at getting clear and simple responses, the written
discovery in this matter is nothing more than gamesmanship looking for a “gotcha” response. At
some point, such written discovery must come to an end. That point is now.
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In light of the fact that counsel are unable to proceed to bring pretrial discovery to an end,
this Court, in fulfillment of its Rule 1 obligations, enters the following order governing
discovery. All paper and written discovery is deemed closed, and the parties shall move forward
to depositions.1 Plaintiff shall be deposed first. After Plaintiff’s deposition, the depositions of
Defendants shall go forward. All depositions, including any third party depositions, are to be
completed by February 1, 2016. Counsel are reminded of their obligations to consider the scope
of permissible discovery during the taking of depositions. Questions must be relevant to the
claims and defenses herein, and the standard is not, as stated in Plaintiff’s motion, “reasonably
calculated to lead to the discovery of admissible evidence.”
In addition to the deadlines established above, Plaintiff shall disclose any experts on or
before February 15, 2016. Defendants are to disclose any experts on or before February 29,
2016.
Finally, the Court addresses Defendants’ long-standing position that they cannot be
responsible because they did not own the Hotel at the time of Plaintiff’s stay. Defendants have
identified the owner of the Hotel, yet Plaintiff, citing to a possible “destruction of diversity”
shows no interest in naming this potentially responsible entity.2 It is not clear why Defendants
have not moved for summary judgment on the ground that Plaintiff names the wrong party. If
Defendants continue to take the position that they are no liable for any injuries because they did
not own or otherwise control the Hotel at the time of the injury, they are required to take the first
1
In the event that any particular document is identified at a deposition, that document may
be requested for production.
2
The Court observes that dismissal of this action for lack of diversity jurisdiction would
likely allow Plaintiff to take advantage of CPLR 205 and commence an action that would be
deemed timely in the State Court of the State of New York. See CPLR 205(a).
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step in dispositive summary judgment process before the District Court on or before February
15, 2016.
CONCLUSION
For the reasons set forth above, Plaintiff’s motions set forth in Docket Entries Nos. 78
and 83 are denied in their entirety. All document and written discovery is deemed closed.
Counsel shall complete discovery in the manner and the time frame set forth above. Absent good
cause and the taking of the parties’ depositions, there shall be no further extensions.
SO ORDERED
Dated: Central Islip, New York
December 22, 2015
/s/ Anne Y. Shields
ANNE Y. SHIELDS
United States Magistrate Judge
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