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Santiago v. McDonald's Restaurants of New Jersey

January 28, 2009


The opinion of the court was delivered by: Hillman, District Judge


This matter is before the Court on Plaintiff's appeal of the Order entered by the assigned Magistrate Judge denying Plaintiff's informal letter application to extend the April 30, 2008 fact discovery deadline set forth in the Court's February 13, 2008 Scheduling Order. For the reasons below, the appeal of the Magistrate Judge's Order will be granted and the parties will be permitted to conduct depositions that were noticed before the April 30, 2008 deadline, such depositions to be concluded within sixty (60) days of the entry of the Order accompanying this Opinion.*fn1


On June 30, 2006, Plaintiff filed a Complaint against Defendant McDonald's Restaurant ("McDonald's") claiming personal injury from a slip and fall accident in the parking lot of the restaurant. Plaintiff alleges that on July 1, 2004, she "slipped and fell on fresh tar or a tar like substance which had been placed on the surface of the parking lot."

On December 6, 2006, the Magistrate Judge held an initial scheduling conference and set the fact discovery deadline for April 30, 2007. Plaintiff wrote to the Court on February 18, 2007, and advised that he had been unable to obtain discovery responses from McDonald's. On February 26, 2007, McDonald's responded to Plaintiff's interrogatories; however, Plaintiff claims that McDonald's did not respond to Plaintiff's Request for Production of Documents and that McDonald's did not identify any other entities or possible Third Party Defendants at that time.

The Magistrate Judge held another scheduling conference on April 16, 2007, and entered an April 17, 2007 Scheduling Order extending the fact discovery deadline to June 18, 2007. Following the conference, Plaintiff contends that the Notice to Produce was again forwarded to McDonald's. On May 5, 2007, Plaintiff received McDonald's responses to the Notice to Produce, and McDonald's indicated that the company responsible for the repairs to the restaurant was DJ's Painting, Inc. ("DJ's Painting"). On May 25, 2007, Plaintiff filed a Motion to Amend Plaintiff's Complaint to add claims against DJ's Painting (Id.), and on June 22, 2007, the Court granted Plaintiff's motion. Plaintiff filed the Amended Complaint, and on August 21, 2007, Plaintiff served DJ's Painting.

On August 2, 2007, the Magistrate Judge held a status conference and entered a Scheduling Order extending the fact discovery deadline to November 30, 2007. On October 10, 2007, DJ's Painting filed an Answer to Plaintiff's Amended Complaint as well as a third party complaint naming, inter alia, Collegiate Sealers. On January 10, 2008, Third Party Defendant Collegiate Sealers filed an Answer to the Third Party Complaint.

On February 13, 2008, the diligent Magistrate Judge held an additional Scheduling Conference with the parties and issued a Scheduling Order. The Order instructed Plaintiff to serve his deposition notices by February 22, 2008, and inform the court by March 7, 2008 of the agreed upon dates for the depositions of Defendants and Third Party Defendants which were required to be completed by April 30, 2008. The Order also required that Plaintiff's deposition be completed by March 31, 2008.

On February 29, 2008, Plaintiff wrote to the Magistrate Judge and advised him that he sent deposition notices to McDonald's, DJ's Painting, and Collegiate Sealers scheduling their depositions for March 21, 2008. Plaintiff claims that the depositions on this date had to be postponed because counsel for DJ's Painting was out of the country. On April 11, 2008, Plaintiff sent a letter to Defendants asking to schedule the depositions on the same date as Plaintiff's scheduled deposition on April 23, 2008. On April 23, 2008, Plaintiff appeared for her deposition and was deposed. The corporate designee of DJ's Painting was also present; however, Plaintiff and Defendants agreed to wait to take his deposition because DJ's Painting had not produced documents in discovery at that point. Plaintiff claims that following the deposition, Plaintiff requested dates for the deposition of the Defendants/Third Party Defendants, and no dates were supplied to him.

On the date that the Court ordered depositions to be completed, April 30, 2008, Plaintiff notified the Court by letter that Defendants failed to produce their clients for depositions.

The Court responded on May 5, 2008, and requested Plaintiff to provide evidence that he complied with the Court's February 13, 2008 Order. On May 6, 2008, Plaintiff submitted an Affidavit to the Court which indicated that he noticed Defendants' corporate designee depositions for March 21, 2008, and Defendants were unable to produce their clients. Plaintiff subsequently requested additional dates, but the depositions were not completed before April 30, 2008.

On May 7, 2008, the Court scheduled oral argument on Plaintiff's application for May 16, 2008. On May 15, 2008, Plaintiff electronically filed a letter with the Court stating that he was attached for trial in the Court of Common Pleas, Philadelphia County, and did not believe that he would be available for the 2:00 p.m. argument on May 16, 2008. The Court left a message with Plaintiff's office the morning of May 16, 2008 advising Plaintiff that oral argument would not be cancelled due to his late request. Plaintiff claims that his late request for a rescheduling of the argument was because he was hopeful that his other cases would not be called to trial. However, by the time that Plaintiff's trial was over, the hearing had already taken place. Plaintiff also points out that it was not until the morning of the argument on May 16, 2008 that McDonald's finally provided the documents that Plaintiff had been requesting for a year and a half.

On May 20, 2008, the Magistrate Judge issued an Order denying Plaintiff's application for an extension of the fact discovery deadline from which Plaintiff now appeals. On December 23, 2008, a hearing was ...

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