Tower Press Building Inc. v. White

165 F.R.D. 73, 34 Fed. R. Serv. 3d 1482, 1996 U.S. Dist. LEXIS 8156, 1996 WL 86507
CourtDistrict Court, N.D. Ohio
DecidedFebruary 9, 1996
DocketNo. 94 CV 2347
StatusPublished

This text of 165 F.R.D. 73 (Tower Press Building Inc. v. White) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tower Press Building Inc. v. White, 165 F.R.D. 73, 34 Fed. R. Serv. 3d 1482, 1996 U.S. Dist. LEXIS 8156, 1996 WL 86507 (N.D. Ohio 1996).

Opinion

MEMORANDUM OF OPINION AND ORDER

NUGENT, District Judge.

This matter is before the Court pursuant to the Plaintiffs Combined Motion for Order Compelling Further Deposition of Defendant Michael White (Doc. 39-1) and For Order Extending Discovery Deadline as to Plaintiff Only (Doc. 39-2). For the reasons that follow, Plaintiffs Motions are DENIED.

I.

Plaintiff, Tower Press Building, Inc. (hereinafter “Tower Press”), is an Ohio corporation with its principal place of business in Cleveland, Ohio. Tower Press is a small corporation that owns a historical landmark building in downtown Cleveland’s near east side. The principals and sole shareholders, officers and directors of Tower Press are Martin L. Sandel, Robert J. Myers and Murray D. Bilfield. All three of these men are attorneys, with Mr. Sandel and Mr. Bilfield being law partners with the firm of Bilfield & Sandel Co., L.P.A.. During 1990, Tower Press, through Mr. Sandel, began to negotiate with Defendant, City of Cleveland, for the sale of real property owned by the City of Cleveland and adjacent to Plaintiff’s Tower Press Building. After several years of negotiation the parties were unable to come to an absolute agreement.

In 1994, Tower Press, was cited by the City of Cleveland for various building code violations before the Housing Division of Cleveland Municipal Court. Tower Press moved the Municipal Court to dismiss the violations on speedy trial grounds. On October 3, 1994, the Cleveland Municipal Court granted Tower Press’s motion to dismiss.

On November 15, 1994, Tower Press filed the herein action under 42 U.S.C. § 1983 claiming violations of the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. The complaint also includes claims against Defendants for selective prosecution, malicious prosecution, abuse of process, illegal appropriation, breach of contract and promissory estoppel, and equitable estoppel arising out of Plaintiff’s proposed development of an office tower on the [74]*74site of the Tower Press property owned by Plaintiff, Tower Press. By way of complaint, Tower Press alleges that the Mayor of the City of Cleveland, Michael White, along with several members of his administration, several members of the City of Cleveland Law Department and other agents of the City of Cleveland acted under color of state law in a conspiracy to deprive Plaintiff of its’ property. It is Plaintiffs contention that the City of Cleveland Law Department, under the direction of Director of Law, Sharon Sobol Jordan, singled out Plaintiff for prosecution and selectively prosecuted Plaintiff in the Housing Division of Cleveland Municipal Court.

This matter was originally assigned, by random draw, to the docket of Judge Paul R. Matia. Under the supervision of Judge Matia, the parties entered into preliminary discovery. On May 2,1995, Judge Matia granted Plaintiffs Motion to Compel Defendant, Mayor Michael White, to attend deposition. By marginal entry order, Judge Matia limited the deposition of Mayor White to one hour. (Doc. 12). Thereafter, in the presence of counsel for both parties, the deposition of Mayor White was taken on June 26, 1995. On July 18, 1995, pursuant to the protocol adopted by the judges of this court for the creation of a docket for Judge Donald C. Nugent, the present matter was transferred to the docket of Judge Donald C. Nugent.

II.

Presently before this Court is Plaintiffs Combined Motion for Order Compelling Further Deposition of Defendant Michael White (Doc. 39-1) and For Order Extending Discovery Deadline as to Plaintiff Only (Doc. 39-2) which was filed on July 18, 1995. Plaintiffs present Motion is brought pursuant to Fed.R.Civ.P. 26(b)(2) which provides, in pertinent part, as follows:

“[T]he frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (I) the discovery sought is unreasonably cumulative or duplicative, or is it obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense, of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.”

In addition, Fed.R.Civ.P. 30(d)(2) provides, in pertinent part, as follows:

(2) By order or local rule, the court may limit the time permitted for the conduct of a deposition, but shall allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another party impedes or delays the examination.

A.

The present Motion requests this Court to allow the Plaintiff more time to take the deposition testimony of Michael White, the Mayor of the City of Cleveland. Plaintiff contends that the deposition of Mayor White should be extended by this court for several reasons. First, on June 21, 1995, five days prior to the deposition of Mayor White, Defendant’s counsel sent Plaintiffs counsel numerous pages of documents and notes. In addition, on June 23,1995, Defendant’s counsel again hand delivered more documents to Plaintiff’s counsel. Plaintiff argues that this action by Defendant’s counsel caused Plaintiff to be unable to question Mayor White in regard to the majority of the documents. Second, Plaintiff contends that Mayor White was “able to stall and evade answering questions with the knowledge that Plaintiff only had an hour in which to take his deposition.” Plaintiff contends that the Mayor’s evasiveness is “patently obvious” and “unfair” to the Plaintiff.

Upon these facts, Plaintiff moves this Court for an order pursuant to Fed.R.Civ.P. 37 ordering Mayor White to submit to further deposition before a United States Magistrate Judge. In addition, Plaintiff moves this Court for an order extending the discov[75]*75ery deadline for 30 (thirty) days following the additional deposition of Mayor White.

B.

Although the Sixth Circuit has not spoken on the matter, other Circuits have held that heads of government agencies should not be subject to routine deposition. See Peoples v. United States Dept. of Agriculture, 427 F.2d 561, 567 (D.C.Cir.1970); Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir.1979). Relying on its discretion and its duty to protect litigants under Fed.R.CivP. 26, supra, the court must weigh the necessity for further deposition testimony of Mayor White as shown by Plaintiff.

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Related

Kyle Engineering Co. v. Kleppe
600 F.2d 226 (Ninth Circuit, 1979)

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Bluebook (online)
165 F.R.D. 73, 34 Fed. R. Serv. 3d 1482, 1996 U.S. Dist. LEXIS 8156, 1996 WL 86507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tower-press-building-inc-v-white-ohnd-1996.