Opinion
Action by Bergen Toy & Novelty Company, Inc., against William Shaland and others. The defendants moved to vacate plaintiff's notice of taking defendants' deposition and to stay plaintiff from serving any further notice of taking depositions on defendant and to stay plaintiff from taking any of defendants' depositions until after defendants had rompleted taking of plaintiff's depositions. The District Court, Noonan, J., held that the action having been started on November 2, 1950, the service on November 22, 1950 of plaintiff's notice of taking defendants' depositions without first obtaining leave of court was improper and as on November 24, 1950, defendants served on plaintiff a notice of taking depositions of plaintiff corporation by certain of its officers and employees, defendants' notice was first one properly served.
Defendants' motions granted.
Pennie, Edmonds, Morton & Barrows, New York City, for plaintiff.
Kenyon & Kenyon, New York City, for defendants.
NOONAN, District Judge.
The defendants have made two motions, the first one of which is to vacate plaintiff's notice of taking defendants' deposition, and the second motion is to stay the plaintiff from serving any further notice of taking depositions upon defendants, and to stay the plaintiff from taking any of the defendants' depositions, until after defendants have completed the taking of plaintiff's depositions.
This action was commenced on November 2, 1950. On November 22, 1950, the plaintiff without leave of Court, served upon the attorneys for the defendants notice of the taking of defendants' depositions.
The action having been started on November 2, 1950, the service on November 22, 1950 of plaintiff's notice of taking defendants' depositions, without first obtaining leave of the Court, was improper. Cf. Rule 3, 6(a) and 26(a), Fed.Rules Civ.Proc. 28 U.S.C.A.
On November 24, 1950, the defendants served upon the plaintiff a notice of taking depositions of the plaintiff corporation by certain of its officers and employees. It would, therefore, appear that the defendants' notice is the first one properly served, and the defendants should be permitted to take plaintiff's depositions before the plaintiff proceeds with the taking of defendants' depositions.
Accordingly, both of these motions by the defendants are granted.
Settle order on two days' notice.