Free Motion for Extension of Time - District Court of Delaware - Delaware

M Case 1 :05-cv-00918-SLR Document 37 Filed 05/24/2007 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
POR. THE DISTRICT OF DELAWARE
CHARLES CARL,
Plaintiff,
V. Civil Action No. 05-918-SLR
MBNA AMERICA BANK NA,
Defendant.
I)EFENDANT’S MOTION TO TAKE
DEPOSITION OUT OF TIME
Defendant MBNA America Bank, N.A. ("Defendant"), through undersigned counsel, hereby
moves for leave to take the deposition of Michael Haley and to subpoena certain medical records
beyond the discovery deadline, and in support thereof, states as follows.
l. On or about December 29, 2005, Plaintiff Charles Carl ("Plaintift°’) tiled a Complaint in
this Court against Defendant alleging that Defendant tenninated his employment in violation of the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (See Docket Entry 1.)
Defendant subsequently filed an Answer and the Court entered its initial Scheduling Order on
August 4, 2006. (See Docket Entries 4 and 9, respectively.) Following certain revisions to the
Scheduling Order, discovery is currently set to close on May 30, 2007. (See Docket Entry 32.)
2. During the discovery period, Defendant has completed its discovery in this matter,
including having taken all of the depositions it believes are necessary other than that of Michael
Haley, Plaintiff s counselor from the ARC of Delaware, an organization that provides support
services for individuals with developmental disabilities. Mr. Haley was involved in Plaintiff s
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Case 1 :05-cv-00918-SLR Document 37 Filed 05/24/2007 Page 2 of 4
placement with Defendant and communicated with Defendant’s employees regarding Plaintiff s job
performance.
3. Defendant has actively attempted to schedule Mr. Haley’s deposition since March 2007.
After placing several phone calls to Mr. Haley without response, in early April 2007, Defendant
was advised by Mr. Haley’s supervisor that he was on medical leave through May 6, 2007, and
would be unavailable for deposition during that time. On May 6, 2007, Defendant again attempted
to contact Mr. Haley at his place of employment without success. After a subsequent phone call,
Defendant was advised by Mr. Haley’s supervisor that his medical leave had been extended through
at least July 2, 2007, and that there was no other individual employed by the ARC of Delaware who
was actively involved with Plaintiff.
4. Thus, Defendant respectfully requests that it be granted leave to take Mr. Haley’s
deposition beyond the discovery deadline upon his return from medical leave, or at such time as he
is capable of providing a deposition in this matter. Defendant also requests that Plaintiff be barred
from obtaining an affidavit from Mr. Haley in order to oppose any dispositive motion filed by
Defendant if Defendant has been unable to depose Mr. Haley as a result of his medical leave.
5. Additionally, on May l, 2007, Defendant sent Plaintiff s Counsel a request that he have
his client sign and retum a release for Plaintiff s medical records from MeadowWood Behavioral
Health System from 1995 to the present. These records are relevant to Plaintiff s claims in this
case. MeadowWood will not produce Plaintiff s records without this release. To date, Defendant
has not received Plaintiff s signed release and, therefore, has been unable to subpoena Mr. Carl’s
records from MeadowWood. Thus, Defendant requests that it be granted leave to subpoena
Plaintiff s medical records from MeadowWood beyond the discovery deadline upon receipt of
Plaintiff s executed release, and that Plaintiff be ordered to sign the proffered release.
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Case 1 :05-cv-00918-SLR Document 37 Filed 05/24/2007 Page 3 of 4
6. Granting the requested relief will not prejudice either party and will ensure that the
parties are equally prepared for any dispositive motions that may be required in this case, or in the
event of trial.
For the foregoing reasons, Defendant MBNA America Bank, N.A. respectfully requests that
its Motion be granted and that the Court entered the proposed Order attached hereto.
Respectfully submitted,
YOUNG CONAWAY STARGATT & TAYLOR, LLP
/s/ Sheldon N Sandler
Sheldon N. Sandler, Esquire (No. 245)
The Brandywine Building, l7th Floor
1000 West Street
P.O. Box 391, Wilmington, Delaware 19899-0391
Telephone: (302) 571-6673
Facsimile: (302) 576-3330
Email: [email protected]
Attorneys for Defendants
and
/s/ Elena D. Marcuss
Elena D. Marcuss, Esquire
McGuire Woods LLP
7 St. Paul Street, Suite 1000
Baltimore, MD 21202
Telephone (410) 659-4400
Facsimile: (410) 659-4547
Email: emarcuss@mcgmirewoodscom
Attorneys for Defendants
Dated: May 24, 2007
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Case 1:05-cv-00918-SLR Document 37 Filed 05/24/2007 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES CARL,
Plaintiff,
v. Civil Action No. 05-918-SLR
MBNA AMERICA BANK NA,
Defendant.
ORDER
Upon consideration of Defendant’s Motion to Take Deposition Out of Time, any Opposition
thereto, and all other matters of record, it is this ___ day of , 2007:
ORDERED, that Defendant’s Motion be and hereby is GRANTED; and it is further
ORDERED, that Defendant MBNA America Bank, N.A. may take the deposition of
Michael Haley beyond the May 30, 2007 discovery deadline upon his return to work at the ARC of
Delaware, or at such other time as he is capable of providing a deposition in this matter; and
it is ORDERED that Plaintiff may not rely on an affidavit prepared by Mr. Haley in
opposition to any dispositive motion filed by Defendant until such time as Defendant has taken Mr.
Haley’s deposition or has determined that no deposition of Mr. Haley is necessary; and it is further
ORDERED, that Defendant may subpoena Plaintiff s medical records from MeadowWood
Behavioral Health System beyond the discovery deadline upon receipt of PIaintiff’s executed
release for those records, which Plaintiff is hereby ORDERED to sign and return to Defendant
promptly upon receipt of this Order.
B§5?`”"m_
United States District Judge
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