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Tubwell v. Specialized Loan Servicing, LLC

United States District Court, N.D. Mississippi, Oxford Division

April 27, 2018

JOE CLYDE TUBWELL PLAINTIFF
v.
SPECIALIZED LOAN SERVICING, LLC, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court is Joe Clyde Tubwell's “Notice of Appeal and Objections to Order of Magistrate Judge Denying Plaintiff's Motions to Strike.” Doc. #94.

         I Relevant Procedural Background

         On March 16, 2018, Fay Servicing, LLC, filed a “Notice of Deposition Duces Tecum of Plaintiff Joe Tubwell.” Doc. #85. On March 26, 2018, Tubwell moved to strike Fay's notice of deposition, asserting, in part, that the location of the deposition was prejudicial to him. Doc. #87. Fay responded to the motion on April 2, 2018. Doc. #89. The same day, Fay re-noticed Tubwell's deposition for a different location.[1] Doc. #90.

         On April 9, 2018, Tubwell filed a “Second Motion to Strike Notice of Deposition Duces Tecum of Plaintiff Joe Tubwell and for Sanctions.” Doc. #92. On April 16, 2018, United States Magistrate Judge Roy Percy issued an order denying Tubwell's March 26 and April 9 motions to strike and ordering Tubwell to “appear for his deposition as re-noticed by Fay … for 9:00 a.m. on May 2, 2018 ….” Doc. #93. On April 20, 2018, Tubwell filed a “Notice of Appeal and Objections to Order of Magistrate Judge Denying Plaintiff's Motions to Strike.” Doc. #94. Fay responded on April 25, 2017. Doc. #97.

         II Analysis

         “A party may serve and file objections to the order [of a magistrate judge] within 14 days after being served with a copy. … The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a); see L.U. Civ. R. 72(a)(1)(B) (“No ruling of a magistrate judge … will be reversed, vacated, or modified on appeal unless the district judge determines that the magistrate judge's findings of fact are clearly erroneous, or that the magistrate judge's ruling is clearly erroneous or contrary to law.”).

         In his objections, Tubwell argues that Judge Percy's order is clearly erroneous or contrary to law because: (1) Judge Percy failed to determine that the re-noticed location was conferred and agreed upon; (2) Fay did not respond to his second motion to strike before the order was entered; (3) the order compels him to take part in a deposition without stipulating what issues would be relevant; (4) Judge Percy disregarded the provisions of Rule 30(a)(2)(A) and Rule 26(d); (5) the order forces him to attend two depositions on the same day; and (6) it includes language warning Tubwell of possible sanctions if he did not comply with the order. Doc. #94 at 2-3. In his supporting memorandum, Tubwell argues that Federal Rule of Civil Procedure “7(b)(1) requires that a Court Order must be obtained by a motion;” that a “party may not seek discovery from any source before the parties have conferred as required by Rule 26(f);” that the order “did not address the provisions of FRCP 30(a)(2)(A)(iii), FRCP 26(d), or FRCP 26(f);” and that he believes the Court, during a telephonic status conference, “held that the discovery deadline could change.” Doc. #95 at 2-3.

         In response, Fay argues: (1) “[t]here is no rule prohibiting numerous defendants from deposing Tubwell at the same time;” (2) “Rule 26(f) requires parties to confer prior to a scheduling conference or before a proposed scheduling order is due to the Court, ” and “Tubwell apparently misinterprets Rule 26(f) as a requirement that Fay obtain his consent to the date and location of his deposition;” (3) the “entry of the Case Management Order ends the requirements to confer in Rule 26(f);” (4) Fay is not seeking to depose Tubwell before the time specified in Rule 26(d), and leave from the court is not required; and (5) the parameters of Tubwell's deposition are governed by Federal Rule of Civil Procedure 26(b)(1). Doc. #98 at 5-8.

         A. Tubwell's Rule 26(f) Objection

         Federal Rule of Civil Procedure 30(a) provides that “[a] party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).” Fed.R.Civ.P. 30(a)(1) (emphasis added). Rule 30(a)(2) provides, in relevant part:

A party must obtain leave of the court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):
(A) if the parties have not stipulated to the deposition and: …
(iii) the party seeks to take the deposition before the time specified in ...

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