Opinion
01 Civ. 0255 (LAK).
January 11, 2002
ORDER
This case is set for trial on January 15, 2002. Defendant's counsel now seeks an adjournment on the ground that his client is out of the country and seeks to reopen discovery.
MCI is a telecommunications provider and defendant a reseller of telecommunications services who allegedly owes MCI more than $400,000. It commenced this action in January 2002 to recover for services allegedly sold and delivered. The parties were unable to agree upon a scheduling order so the Court held a Rule 16 conference on March 19, 2001. In response to assertions by defendant's counsel that defendant's principal was in India and that information pertinent to the action was located in an area affected by a recent earthquake, the Court fixed a schedule calling for the completion of discovery by July 5 and the submission of the joint pretrial order by July 27.
In June 2001, the Court extended the foregoing dates by 90 days (i.e., to October 3 and October 25, respectively) in response to the fact that the parties had been engaged in settlement discussions and defendant had changed counsel. The endorsed order provided that no further extensions would be granted. Further, in response to a complaint by plaintiffs that defendant was unresponsive to discovery demands, the Court, after conferring with counsel for both sides, directed that defendant produce its documents on or before September 6 and that defendant's Mr. Patel appear for deposition on September 19 or 20, as counsel might agree. (Order, Aug. 27, 2001)
In response to the events of September 11, 2001, the Court granted a final extension, postponing the date for completion of discover until November 2 and for submission of the joint pretrial order until November 26, 2001.
The joint pretrial order was filed on December 4, 2001. On December 13, 2001, the Court by written order set the case for trial on January 15, 2002.
Defendant's counsel now asserts that Mr. Patel, who would have been defendant's main witness, has not been in contact with him for "over 3 weeks" and that he "left New York 3 weeks ago for India on an emergency basis due to a death in his family." (Letter, Jeffrey M. Gottlieb to Court, Jan. 10, 2002) He says that a family member has told him that Mr. Patel will not return to New York until February. He asks that the trial be put over and that the discovery period be extended.
There is utterly no excuse for extending the discovery period, which ended on November 2, 2001, and counsel offers none. Indeed, he signed the joint pretrial order filed in early December, signifying that the case is trial ready.
Nor is the Court persuaded that the trial should be put over. It of course is entirely sympathetic to the wish, indeed need, of individuals to attend funerals of beloved family members. The facts remain, however, that (a) the Court's individual rules make clear that cases are regarded as trial ready on 24 hours notice upon the filing of the pretrial order, which occurred in early December, (b) the Court set the case for trial on January 15 almost one month ago and thus, it appears, before Mr. Patel left the country, (c) there has been no showing why attendance at a funeral, even in a land as distant as India, should take more than three weeks, and (d) no satisfactory explanation has been offered for counsel's failure to reach Mr. Patel and urge is immediate return. Further, defendant's counsel has simply ignored the Court's requirement that counsel in prospective bench trials such as this one "prepare and exchange statements containing the direct testimony of each witness they intend to call."
Individual Practices of Judge Lewis A. Kaplan, in APPENDICES 2000, MICHAEL SILBERGERG, CIVIL PRACTICE IN THE SOUTHERN DISTRICT OF NEW YORK at APP III-123(2d ed. 2000).
Id. at APP III-124.
The foregoing demonstrates that defendant's principal left the country for an extended period without contacting counsel with the knowledge either that (1) the case was on 24 hour notice for trial, or (2) had been set for trial on January 15, depending upon whether he departed before or after learning of the order setting the latter date. He has remained out of touch ever since. While a sudden departure for a funeral is understandable, the overall picture is inexcusable, particularly taken together with the difficulties in scheduling trials and the fact that plaintiffs, who complied with the Court's pretrial requirements at considerable expense, would be prejudiced by a delay. Accordingly, the application for an adjournment of the trial is denied. Defendant of course may use the deposition of Mr. Patel in lieu of his live testimony to the extent permitted by Rule 32.
SO ORDERED.