Barnes et al v. Malinak et al (PLR2)
ORDER granting 68 Motion to Quash; denying as moot 67 Motion for Sanctions. Signed by Magistrate Judge H Bruce Guyton on 7/5/17. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
PHYLLIS G. BARNES, and WALTER R.
GREG MALINAK, et al.,
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Defendant Sidney James Motor Lodge, Inc.’s Rule 16(f) Motion
for Sanctions [Doc. 67] and Defendants Greg Malinak and Debbie Malinak’s Motion to
Quash/Objection to the Plaintiffs’ Notice of Video Deposition of Clayton H. Thomason, M.D.
[Doc. 68]. The parties appeared before the Court on June 30, 2017, for a motion hearing. Attorney
Darren Berg appeared on behalf of the Plaintiffs. Attorneys Albert Harb and Mabern Wall
appeared on behalf of Defendants Greg Malinak and Debbie Malinak. Attorneys Christopher Field
and Gregory Brown were present on behalf of Defendant Sidney James Motor Lodge, Inc.
The Court has considered the parties’ filings and the oral arguments presented at the
hearing. Specifically, the Defendants assert that the Plaintiffs’ Notice of Video Deposition of
Clayton Thomason, M.D., (“Notice”) is untimely. The Defendants explain that the discovery
deadline in this case was on May 31, 2017, and the Plaintiffs’ Notice set Dr. Thomason’s
deposition for July 7, 2017. The Plaintiffs respond that they do not interpret the Scheduling Order
deadline for “All Discovery” to apply to depositions taken for proof of physicians who are exempt
from trial subpoenas.
The Scheduling Order [Doc. 13] entered in this case on May 6, 2016, provides as follows:
All Discovery: All discovery, including the taking of
depositions “for evidence,” shall be completed by ninety
(90) days before trial. (Motions to compel must be filed at
least thirty (30) days before this deadline).
The Court finds that the above language is clear that all depositions, including Dr.
Thomason’s, must be completed ninety (90) days before trial. Accordingly, because the Notice
was sent after the deadline for all discovery and the Plaintiffs did not request leave to file the
Notice outside the deadline, the Defendants’ Motion to Quash [Doc. 68] is GRANTED, and the
Notice is hereby QUASHED. 1 Because the Court has quashed the Notice, there is no need to
issue any sanctions, and the Defendant’s Motion for Sanctions [Doc. 67] is hereby DENIED AS
As a final matter, the Court notes that all parties failed to comply with section 3(i) of the
Scheduling Order. The Defendants argue that the Plaintiffs would not agree to a telephone
conference with the undersigned. This is not an excuse because compliance with section 3(i) is
everyone’s responsibility. The parties are ADMONISHED that the failure to follow the procedure
outlined in section 3(i) of the Scheduling Order will not be excused in the future.
IT IS SO ORDERED.
United States Magistrate Judge
The Court notes that the Plaintiffs filed a Motion [Doc. 77] requesting an extension to
take medical proof approximately forty-five minutes prior the hearing. The Court declined to
address the Motion at the hearing because it was not ripe. Further, the Defendants stated that they
would file a response to the Motion on or before July 6, 2017.
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