United States District Court, M.D. Florida, Tampa Division
TERRY R. BURD, as Trustee of the Victoria B. Uselton Irrevocable Trust, a Florida Trust, Plaintiff,
AMERICAN GENERAL LIFE INSURANCE COMPANY, Defendant.
S. SNEED, UNTIED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant's Motion to
Compel Depositions of Terry R. Burd (Trustee) and Michael
Uselton (“Motion”). (Dkt. 15.) Upon
consideration, the Motion to Compel is granted in part and
denied in part.
October 26, 2017, Terry Burd filed this action as the Trustee
of the Victoria B. Uselton Irrevocable Trust, a Florida
Trust, in the Circuit Court of the Twelfth Circuit in and for
Manatee County, Florida. (Dkt. 2.) On November 21, 2017,
Defendant removed the action to this Court. (Dkt. 1.) On
April 18, 2018, the Court entered its Case Management and
Scheduling Order. (Dkt. 14.) The deadline for discovery was
set for August 1, 2018, and trial was scheduled for the March
2019 trial term. (Id.)
initial disclosures, Plaintiff identified Terry Burd and
Michael Uselton as witnesses who had substantial knowledge
regarding the issues in this lawsuit. (Dkt. 15 at 1.) Both
witnesses were listed as being available “c/o Ellis,
Ged & Bodden, PA, ” counsel for Plaintiff.
(Id.) On July 10, 2018, Defendant requested dates
from Plaintiff's counsel for the depositions of Burd and
Uselton. (Id. at 2.) Despite Defendant's
multiple attempts to schedule the depositions,
Plaintiff's counsel has failed to provide dates for the
witnesses' depositions. (Id.) Defendant now
requests the Court to compel Plaintiff to produce Burd and
Uselton for deposition on July 31 and August 1, 2018,
respectively. (Id.) In the alternative, Defendant
requests an extension through August 10, 2018, to take the
depositions. The Court ordered Plaintiff to file an expedited
response on or before July 27, 2018, at 12:00 p.m. and
advised Plaintiff that failure to respond would result in the
Court considering the Motion unopposed. (Dkt. 16.) To date,
Plaintiff has failed to file a response to the Motion.
party may, by oral questions, depose any person, including a
party, without leave of court, ” except in certain
situations not applicable here. Fed.R.Civ.P. 30(a)(1).
Federal Rule of Civil Procedure 30(a)(1) provides that the
attendance of witnesses may be compelled by subpoena as
provided in Rule 45. Id. A subpoena is unnecessary
to take the deposition of a party or of an officer, director,
or managing agent of a party. Karakis v. Foreva Jens
Inc., 08-61470-CIV-COHN, 2009 WL 113456, at *1 (S.D.
Fla. Jan. 19, 2009) (“Only a party to the litigation
may be compelled to give deposition testimony pursuant to a
notice of deposition.”). However, Rule 30(b) requires a
party desiring to take a deposition to give written notice of
the deposition. Fed.R.Civ.P. 30(b); 9A Charles Alan Wright,
ET AL., Federal Practice and Procedure: Civil § 2460 (3d
ed. 2018) (“Service of the notice of taking of the
deposition is enough to require [a party] to appear and to
expose the party to sanctions under Rule 37(d) if they fail
to do so.”). District courts have broad discretion in
managing pretrial discovery matters and in deciding whether
to grant motions to compel. Perez v. Miami-Dade
Cnty., 297 F.3d 1255, 1263 (11th Cir. 2002); Union
Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984)
Defendant argues that Plaintiff identified Terry Burd and
Michael Uselton as witnesses with knowledge of the issues in
this lawsuit and that Plaintiff's counsel indicated both
witnesses would be produced through him. (Dkt. 15 at 1.)
Despite the Court's Order directing Plaintiff to respond
to the Motion, Plaintiff has failed to file a response.
Consequently, the Court presumes Plaintiff has no objection
to Defendant's Motion. See M.D. Fla. Local R.
3.01(b). However, Defendant does not indicate that it noticed
either individual for deposition in compliance with Rule
30(b) or served them with subpoenas under Rule 45.
See Fed. R. Civ. P. 30(b), 45. Defendant states that
it merely “reached out to counsel for Plaintiff on
multiple occasions” to request dates for the
depositions. (Dkt. 15 at 2.) Therefore, Defendant's
request to compel the depositions of Terry Burd and Michael
Uselton is denied without prejudice.
Defendant requests an extension of the discovery deadline
through August 10, 2018, to take the requested depositions.
(Dkt. 15 at 2.) Pursuant to Local Rule 3.02, a party desiring
to take the deposition of any person shall give at least
fourteen days' notice in writing to every other party to
the action and to the deponent, if the deponent is not a
party. M.D. Fla. Local R. 3.02. An extension through August
10, 2018, would not comply with notice requirement of Local
Rule 3.02. Therefore, the Court will grant Defendant an
extension of fourteen days from the date of this Order for
the sole purpose of deposing Terry Burd and Michael Uselton.
Accordingly, it is
Defendant's Motion to Compel Depositions of Terry R. Burd
(Trustee) and Michael Uselton (Dkt. 15) is
GRANTED in part and DENIED
Defendant's request to compel Terry Burd and Michael
Uselton's depositions is denied without prejudice.
discovery deadline is extended through August 15, 2018, to
allow the ...