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Alexiou v. Moshos

September 9, 2009

THALIA ALEXIOU
v.
ANGELO MOSHOS



The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge

MEMORANDUM AND ORDER

In this diversity contract action, Plaintiff Thalia Alexiou ("Plaintiff") brought suit against Defendant Angelo Moshos ("Defendant"), her brother-in-law,*fn1 for damages allegedly arising out of a September 15, 2004, agreement pursuant to which Defendant loaned money to Plaintiff and her husband to buy a property in Philadelphia. Presently before the court is Defendant's Motion to Modify Scheduling Order Pursuant to Rule 16 of the Federal Rules of Civil Procedure (Doc. 37), and Plaintiff's memorandum in opposition thereto (Doc. 38). For the following reasons, I will deny the motion.

I. FACTS AND PROCEDURAL BACKGROUND

There is no dispute between the parties regarding the discovery-related facts and procedural history as they relate to the motion.

Plaintiff commenced this action in the Court of Common Pleas of Philadelphia County, and Defendant removed it to this court on November 20, 2008. See Doc. 1.

Defendant filed his answer on December 1, 2008. See Doc. 2. The case was heard by a panel of arbitrators and an award was entered on April 2, 2009. See Doc. 17.*fn2 Plaintiff appealed the result, requesting a trial de novo. See Doc. 18.

On May 5, 2009, the Honorable Mary A. McLaughlin referred the matter to me for all proceedings, upon the execution of both parties' consent. See Docs. 20-21. On May 12, 2009, I conducted a telephonic conference with counsel. When I asked counsel what discovery was necessary, counsel explained that they had not served document requests, but that only the parties' depositions needed to be taken. Accordingly, I issued a Scheduling Order with a short discovery end date of June 5, 2009, a dispositive motion deadline of June 12, 2009, and trial date of July 27, 2009. See Doc. 22.

Counsel were unable to arrange the depositions of the parties in conformity with the June 12, 2009, discovery deadline. See Brown Cert., attached to Pl.'s Br., at ¶ 9. In addition, on May 27, 2009, Defendant's counsel advised my chambers that, due to an unforeseen family medical issue, Defendant would be out of the country during the scheduled trial date.*fn3 On May 29, 2009, I held a telephonic conference with counsel to resolve the deposition and trial date issues. Based on representations by counsel that the depositions would occur by June 10, 2009, and that there were no other discovery issues, I issued an Amended Scheduling Order extending the discovery deadline to June 10, 2009, and moving the pre-trial conference and trial date to October 26, 2009. See Doc. 25.

By letter dated June 4, 2009, Plaintiff's counsel advised me that the parties' depositions could not occur as tentatively scheduled for June 9th and June 10th, and that they would instead take place on June 17, 2009. As a result, Plaintiff's counsel requested that the discovery deadline be extended again, and that the dispositive motion deadline be extended for two weeks to allow for transcription of the deposition testimony. See Brown Letter 06/04/09, attached as Ex. A to Def.'s Br. Defendant's counsel did not object to the request. Id. Accordingly, on June 3, 2009, I issued a Second Amended Scheduling Order setting a new discovery deadline of June 17, 2009, and a dispositive motion deadline of June 26, 2009. See Doc. 29.

During the course of Plaintiff's deposition on June 17, 2009, counsel for Defendant identified certain documents he desired, specifically copies of bank records and tax returns for 2001-2008. See Pl.'s Dep., attached as Ex. B to Def.'s Br., at 23, 35. This led to the following exchange during the deposition:

[PL.'S COUNSEL]: Gavin [Defendant's counsel], you and I can speak about document requests. If you want to go in to full document production which we haven't done I am happy to do that, but it will be on a mutual basis.

[DEF.'S COUNSEL]: There is a list of things that we want, and I will let you know on the record and we can agree to a list after the deposition.

[PL.'S COUNSEL]: I am willing to do a mutual listing for the deposition.

Id. at 35. Thereafter, counsel for Defendant did not pursue the offer to draft a mutual list of document requests. See ...


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