Opinion
11-CV-00697(A)(M)
01-24-2013
MARILYN CORNELIUS, Plaintiff, v. INDEPENDENT HEALTH ASSOCIATION, INC., incorrectly sued herein as INDEPENDENT HEALTH, Defendant.
ORDER
In response to Mr. De Luca's letter dated January 23, 2013 [52], I had attempted to schedule a telephonic conference with the parties for today or tomorrow, in the hope of avoiding unnecessary motion practice. In an e-mail to my law clerk today [53], Ms. Cornelius has advised that she is only available for such a conference on January 31 and February 1 at specific times.
According to Mr. DeLuca's letter, in response to his deposition notice scheduling her deposition for January 28, 2013 at his office, Ms. Cornelius sent him an e-mail stating: "I am not available at all during the months of January or February. Your office is not a convenient location for me ... I don't feel comfortable, nor would I feel safe at your office".
I wish to remind Ms. Cornelius that, as the plaintiff in this case, it is her obligation to make herself available for a deposition at a reasonable time and location. Absent a truly compelling explanation (which I have yet to hear), I fail to see why she cannot be available for a deposition at some point prior to the end of February, and why Mr. De Luca's office is not a proper location for her deposition.
Therefore, by January 31, 2013 the parties are ordered to communicate with each other and agree upon a date for the deposition, to be held no later than February 22, 2013. Failing that, the defendant may move for appropriate relief, including the dismissal of this action. SeeFed. R. Civ. P. 37(b)(2)(A)(v): "If a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue further just orders. They may include the following: . . . dismissing the action or proceeding in whole or in part".
SO ORDERED.
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JEREMIAH J. MCCARTHY
United States Magistrate Judge