Noel v. The City of New York

Background

Plaintiff Gordon Noel asked for permission under Rule 45 of the Federal Rules of Civil Procedure to serve a deposition subpoena on non-party witness Terrance Graham by certified mail. Noel also asked the court to order the City to provide a photograph of Graham and to extend fact discovery from June 15, 2024, to July 19, 2024.

According to Noel’s request, Graham was a deputy warden who approved Noel’s leave of absence and therefore was a key witness. Noel said the City initially did not produce Graham for a deposition, later said Graham was on leave, and then said Graham had retired and was no longer under the City’s control. Noel also said the City provided an incorrect address, that several attempts to serve Graham were unsuccessful, and that Graham refused to allow a process server into his apartment building. The City’s attorney declined to provide Graham’s photograph without a court order. The City consented to the requested discovery extension.

Court’s Analysis

The court stated that Noel did not appear to have acted as diligently as he should have in trying to depose someone who did not appear to be under the City’s control. The court also noted that Noel did not attempt to serve Graham with a subpoena until after the original discovery deadline. Despite those concerns, the court granted Noel’s fourth request for a discovery extension.

Rulings

The court granted the extension of fact discovery until July 19, 2024, and stated that no further extensions would be granted. It denied Noel’s request for an order requiring the defendants to provide Graham’s photograph. It granted Noel leave under Rule 45 to attempt to serve Graham by an alternative method—certified mail.

The court also adjourned the post-discovery conference scheduled for June 18, 2024, to July 31, 2024, at 11:00 a.m. The parties were ordered to submit a joint status letter one week before the conference.