United States District Court, M.D. Florida, Tampa Division
SHAWN THOMAS KALETA, an individual, and BEACH TO BAY CONSTRUCTION LLC, a Florida limited liability company, Plaintiffs,
CITY OF ANNA MARIA, Defendant.
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant's Motion for Leave to
Depose Joseph Acebal Out of Time and Extend the Discovery
Deadline (Dkt. 67) and Plaintiffs' response in opposition
(Dkt. 80). Upon consideration, the motion is
served Plaintiffs a Notice of Taking Videotaped Deposition of
Joseph Acebal on June 28, 2017, (Notice, Dkt. 80-1), the same
day that it took the deposition of Shawn Thomas Kaleta in his
capacity as Beach to Bay Construction, LLC's corporate
representative, (Motion for Leave, Dkt. 67 at p. 1). During
Kaleta's deposition, Defendant learned for the first time
of Plaintiffs' position that its conduct caused them to
lose Acebal as a customer. (Id.). Defendant's
counsel contacted Acebal shortly after Kaleta's
deposition. (Id. at p. 2). Acebal advised that he
would be in Florida for only one more day before returning to
North Carolina, where he resides nine months out of the year.
(Id.). Accordingly, Defendant noticed Acebal's
deposition for June 29 at 12:30 p.m., to take place after
depositions scheduled for that day. (Id. at pp.
2-3); (Notice of Taking Deposition, Dkt. 80-1),
Plaintiffs' counsel advised Defendant's counsel that
they would need to confer and get back to them. (Response,
Dkt. 80 at p. 2). They advised later in the evening of June
28 that they would be filing a motion to quash the notice of
taking deposition, (E-mail, Dkt. 80-2), and Plaintiffs filed
an emergency motion to quash the morning of June 29. (Dkt.
its knowledge of Plaintiffs' pending emergency motion to
quash, and over the verbal objection of their counsel,
Defendant took Acebal's deposition from approximately
12:30 P.M. to 12:34 P.M. on June 29, 2017. (Motion for Leave,
Dkt. 67 at p. 3-4); (Response, Dkt. 80 at p.
3).Defendant had taken over ten depositions
prior to Acebal's deposition. (Response, Dkt. 80 at p.
3). And the discovery deadline was June 1, 2017. (Case
Management and Scheduling Order, Dkt. 20, as amended by Dkt.
party must obtain leave of court, and the court must grant
leave to the extent consistent with Rule 26(b)(1) and (2): .
. . if the parties have not stipulated to the deposition and:
. . . (i) the deposition would result in more than 10
depositions being taken[.]" FED. R. ClV. P. 30(a)(2)(A).
District courts have broad discretion over management of
their cases, including pretrial discovery, and "[i]n
allowing or disallowing a deposition to be taken for use at
trial, it is appropriate that the district court consider all
the circumstances." Chrysler Int'l Corp. v.
Chemaly, 280 F.3d 1358, 1362 (11th Cir. 2002). A
district court may extend the time for performing an act, for
good cause, after time has expired if the party seeking the
extension establishes excusable neglect. FED. R. Crv. P.
should have obtained leave of court before taking
Acebal's deposition. However, exclusion of Acebal's
deposition from trial on that basis is not warranted.
must grant leave to a party requesting to take more
than ten depositions to the extent consistent with Rule
26(b)(1) and (2). Fed.R.Civ.P. 30(a)(2)(A). Parties may
obtain discovery regarding matters relevant to any
party's claim or defense, and courts may limit discovery
if it is cumulative, duplicative, or obtainable from other
sources or if the party seeking the discovery already had
ample opportunity to obtain the information. Fed. R. Crv. P.
26(b)(1), (2). Defendant is entitled to take Acebal's
deposition pursuant to Rule 30(a)(2) because he is likely to
have relevant, non-cumulative, and non-duplicative
information relating to Plaintiffs' damages. (Amended
Complaint, Dkt. 23 at p. 25). And Defendant's short
notice of Acebal's deposition was reasonable under the
circumstances. See FED. R. Civ. P. 30(b)(1).
regard to Plaintiffs' argument that Defendant's
deposition of Acebal occurred after the discovery cutoff,
Defendant establishes good cause. See Fed. R. Civ.
P. 6(b). It served Plaintiffs with an interrogatory
requesting the identities of all persons believed to have any
knowledge relating to their claims. (Plaintiffs' Answers
to Interrogatories, Dkt. 67-2 at p. 5). Plaintiffs did not
identify Acebal in their answer to that interrogatory.
(Id.). They identified Acebal as a witness for the
first time during a deposition that took place after the
discovery deadline had already passed. See (Order,
Dkt. 53) (granting extension of discovery deadline for the
purpose, among others, of Defendant taking the deposition of
Beach to Bay Construction's corporate representative
regarding Plaintiffs' damages). Their position that
Defendant never propounded discovery specifically requesting
information about lost customers, and therefore has no one to
blame but itself for not learning about Acebal until
Kaleta's deposition, is not persuasive. See
(Emergency Motion to Quash, Dkt. 58 at ¶ 6).
and most importantly, requiring Defendant to retake
Acebal's deposition would be a needless waste of time,
effort, and expense at this stage of the case. As noted,
Acebal has information relevant to Plaintiffs' damages
and Defendant is entitled to depose him. Both parties were
represented by counsel at his deposition, and the deposition
was videotaped. Plaintiffs do not argue that the deposition
was transcribed inaccurately, they did not have a chance for
cross examination, or they were otherwise prejudiced by
Defendant taking his deposition without prior leave of court.
By all accounts, the deposition lasted only about four
minutes. And this case is set for trial in November 2017.
Requiring Defendant to make arrangements in North Carolina to
retake a four-minute deposition of a material witness does
not further the interest in moving this case to a reasonably
timely and orderly conclusion on the merits. See Chrysler
Int'l Corp., 280 F.3d at 1362 ("[D]istrict
courts must have discretion and authority to ensure that
their cases move to a reasonably timely and orderly
Defendant's Motion for Leave to Depose Joseph Acebal Out
of Time and Extend the Discovery Deadline (Dkt. 67) is
GRANTED. Defendant is retroactively granted
leave of court to take Acebal's deposition.
An Order entered at 12:34 P.M. on June
29, 2017 granted, in part, Plaintiffs' emergency motion
to quash. (Dkt. 59). However, both parties acknowledge that
Defendant had already completed Acebal's deposition
before either party became aware of the Order. ...