Bergen Toy & Novelty Co. v. Shaland

11 F.R.D. 208, 1950 U.S. Dist. LEXIS 3624

• Court: District Court, S.D. New York
• Decided: December 15, 1950
• Status: Published

Opinion

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’ de-. positions.

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 plaintiffs 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.