UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF PUERTO RICO

John Zerbe, Trustee

v. NH Civil No. 05-ds-021-JD

PR Civil No. 02-2357

Gabriela Alejandra Guzman

Pinal and Luis Olmos Dueas

O R D E R

Defendant Alejandra Guzman moves for an extension of the

discovery deadline to accommodate her deposition at the end of

June of 2006. John Zerbe opposes the motion to extend the

deadline. Each party accuses the other of failing to properly

pursue and cooperate in discovery.

On December 9, 2005, the court set the general discovery

deadline for June 1, 2006, but also set specific times for

depositions, February 13-19 and March 20-24 of 2006. A discovery

deadline may be extended on the request of a party when good

cause is shown. See Vulcan Tools of P.R. v. Makita USA, Inc., 23

F.3d 564, 566 (1st Cir. 1994). Good cause does not include a

delay caused by a lack of diligence. Sigros v. Walt Disney World

Co., 190 F. Supp. 2d 165, 169 (D. Mass. 2002).

In support of her motion, Guzman’s counsel represents that

he sent emails to Zerbe’s counsel to schedule February 15, 2006,

for Guzman’s deposition and in response got return emails that

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the firm would contact him soon. Hearing nothing from the firm,

counsel called Zerbe’s counsel on February 10 to confirm the

deposition date. An associate of Zerbe’s counsel, Janice

Richardson, informed Guzman’s counsel that his emails had not

been received by the firm and that Zerbe’s counsel was only

available for Guzman’s deposition on February 13 and 14, when

Guzman was not available. Counsel then agreed, according to

Guzman’s counsel, that Guzman’s deposition would be taken during

the week of March 20-24, 2006. Guzman’s counsel also sent a

letter by messenger to Zerbe’s counsel’s office, confirming the

discussed dates. Nothing was heard in response so that no plan

or preparation was made for depositions in March.

Guzman’s counsel now represents that Guzman is not available

for deposition until the week of June 26 to 30, 2006, because of

her travel schedule for promoting her newly released record. 

Although Guzman will be in Puerto Rico briefly on April 7, 2006,

as part of her promotional activities, she will not then have

time to be deposed. Guzman asks that discovery be extended to

August 1, 2006, to accommodate her deposition in June.

Zerbe filed a “Notice” on March 21, 2006, listing various

complaints about Guzman’s discovery practices. The issues raised

in the “Notice” are not considered here nor is relief available

absent a properly filed motion. Zerbe also filed an objection to

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Guzman’s motion to extend discovery. Zerbe’s counsel represents

that he first heard that Guzman was unavailable to be deposed in

March when the motion to extend discovery was filed. Counsel

then accuses Guzman’s counsel of lying about Guzman’s lack of

availability to be deposed. Zerbe does not appear to appreciate

that it is his obligation to schedule the deposition of the

opposing party and that he may forfeit his opportunity to depose

Guzman if he fails to do so.

Zerbe’s counsel’s hyperbole and ad hominem attacks are not

persuasive, they undermine Zerbe’s position, and they do nothing

to advance the cause of this case. It appears that the problems

with scheduling Guzman’s deposition are at least in part due to

communication problems with Zerbe’s counsel. Therefore, the

court will accept Guzman’s proffer as good cause for extending

the time for her deposition. There is no reason, however, to

extend the general discovery deadline, which will remain June 1,

2006.

It is unfortunate that the court should have to become

involved in such a simple matter as scheduling a deposition.

Conclusion

For the foregoing reasons, the defendant’s motion to extend

the discovery deadline (document no. 42) is granted to the extent

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that her deposition may be taken during the week of June 26 to

30, 2006, and no later, but the general discovery deadline

remains at June 1, 2006. 

On or before April 7, 2006, counsel shall confer to set the

dates and times of the deposition and shall file the deposition

schedule by that date. Failure to set the discovery schedule by

April 7, 2006, and to file the schedule in this court by that

date, may result in sanctions against the responsible party. No

further extension of the discovery deadline will be granted

absent extraordinary circumstances.

Any other discovery issues raised in the parties’ current

filings have not been considered or resolved and must be raised,

if necessary, in separate motions seeking relief specific to

those matters. Counsel are cautioned, again, that the court

expects discovery to proceed in accordance with the Federal Rules

of Civil Procedure without resort to the court. 

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

 (Sitting by designation.)

March 27, 2006 

cc: Alfredo Castellanos-Bayouth, Esquire

Angel E. Rotger-Sabat, Esquire

Clerk, USDC=PR

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