Davis v. Colonial Freight Systems, Inc. et al
MEMORANDUM AND ORDER: The Court ORDERS that the Plaintiff's deposition be taken prior to December 22, 2017. With respect to the Plaintiff's request that the deadline for filing a motion for conditional certification be extended, the Court GRANTS the request, and the deadline is extended to December 22, 2017. Signed by Magistrate Judge H Bruce Guyton on 10/20/17. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
THEODUS DAVIS, on behalf of himself and
those similarly situated,
COLONIAL FREIGHT SYSTEMS, INC., et al.,
MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02. On October 19, 2017, the parties appeared before the undersigned
telephonically to address the status of discovery with regard to depositions, the need to extend the
motion deadline for conditional certification, and the parties’ efforts in resolving matters raised in
the Plaintiff’s Motion to Compel Production [Doc. 44] which is currently being held in abeyance
[Doc. 53]. Attorney Joshua Boyette and Travis Martindale-Jarvis appeared on behalf of the
Plaintiff. Attorney Richard Hollow appeared on behalf of the Defendants.
The parties first addressed the status of depositions in this case. Currently, defense
depositions are scheduled to take place in Knoxville, Tennessee on November 20 and 21, 2017.
The Defendants, however, recently noticed the Plaintiff that his deposition would take place in
Knoxville on November 3, 2017. During the status hearing, the Plaintiff, who resides in Texas,
explained that he does not oppose traveling to Knoxville to be deposed but argued that because the
Defendants recently noticed him, making arrangements to travel to Knoxville on such short notice
would create a significant economic hardship on him, specifically due to the fact he just started a
new job. The Defendants responded that the date of notice was a result of having only recently
received the Plaintiff’s responses to written discovery. The Defendants also take the position that
as a general rule, a plaintiff’s deposition should be taken first.
Pursuant to Federal Rule of Civil Procedure 30(b)(1), the location and time of a deposition
is generally selected by the party giving notice of the deposition. The Rule also requires, however,
that “reasonable written notice” be given. Id. When a dispute arises over the scheduling of a
deposition, this Court has wide discretion in resolving the matter. See Brasfield v. Source
Broadband Servs., LLC, 255 F.R.D. 447, 449 (W.D. Tenn. 2008) (observing that “the court has
wide discretion regarding designation of the time and place of the deposition”). The Court’s power
is derived from Rule 26(c), which allows courts “to limit discovery to prevent ‘annoyance,
embarrassment, oppression, or undue burden or expense,’ including with regard to the designation
of the time and place of depositions.” Scooter Store, Inc. v. Spinlife.com, LLC, No. 2:10-CV-18,
2011 WL 2118765, at *1 (S.D. Ohio May 25, 2011) (quoting Fed. R. Civ. P. 26(c)(1)).
In the present matter, the Court finds that the Defendants have not provided “reasonable
written notice” in that the Plaintiff has not been given a sufficient amount of time to appear in
Knoxville from the date of notice. The Plaintiff is entitled to more time to make the necessary
work and travel arrangements. Requiring the Plaintiff to appear in Knoxville on November 3
would create an undue hardship on the Plaintiff. While the Court agrees that it is generally
preferable for a plaintiff to be deposed first, it is not a requirement. This is particularly true in
such cases as the instant matter where the named plaintiff has sued under the Fair Labor Standards
Act and is therefore only the representative of a group. At the same time, the Court finds that it
would not be reasonable to require the Defendants to travel to Texas to do a deposition on
November 3. That choice will be left to the Defendants. If they choose to go to Texas, the
Plaintiff’s deposition may proceed on that day. In any event, the Court ORDERS that the
Plaintiff’s deposition be taken prior to December 22, 2017.
Furthermore, the Plaintiff is
ADMONISHED to work in good faith in making himself available as soon as possible for
deposition in Knoxville.
With respect to the Plaintiff’s request that the deadline for filing a motion for conditional
certification be extended, the Court GRANTS the request, and the deadline is extended to
December 22, 2017.
Finally, as to the Plaintiff’s Motion to Compel [Doc. 44], the parties will continue to meet
and confer in an attempt to resolve any outstanding discovery disputes. Therefore, the Court will
continue to hold in abeyance the Plaintiff’s Motion to Compel [Doc. 44]. The parties shall contact
chambers for another telephone conference should any discovery issues arise.
IT IS SO ORDERED.
United States Magistrate Judge
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