DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
5
OLGA NIEVES and KEYRA JACOBS
5
As Mother and Next of Friend for
5
K’JANI CONNELL, a Minor,
5
2005-CV-0024
5
Plaintiffs,
5
v.
5
5
KMART CORPORATION,
5
5
Defendant.
5
____________________________________5
TO:
Lee J. Rohn, Esq.
Wilfredo A. Geigel, Esq.
ORDER DENYING PLAINTIFF’S EMERGENCY MOTION TO COMPEL
DEPOSITIONS
THIS MATTER came before the Court upon Plaintiff’s Motion to Compel
Depositions (Docket No. 132).  Defendant filed an opposition to said motion by the
expedited deadline set by the undersigned.  Because of the emergency nature of the
motion, this order is issued without necessity of reply.
Plaintiff seeks to compel the depositions of three of Defendant’s expert witnesses
that were set for January 7, 2009.  According to both parties, the time and date of these
depositions were agreed to at the insistence of Plaintiff’s counsel and based upon her
schedule.  In exchange for making its experts available at a date convenient for Plaintiff’s
Case: 1:05-cv-00024-TJS   Document #: 134   Filed: 01/06/09   Page 1 of 3
Nieves v. Kmart Corp.
2005-CV-0024
Order Denying Plaintiff’s Emergency Motion to Compel
Page 2
counsel, Defendant conditioned the deposition date upon receipt of the expert witness
deposition fees by December 29, 2008.  When the deadline had passed and no fees had been
advanced, counsel for Defendant informed counsel for Plaintiff that, pursuant to the terms
of the agreement, they were canceling the depositions as scheduled.
The Court notes that the notices of deposition were filed and purportedly sent on
December 30, 2008 (Docket Nos. 129, 130, and 131) and that the checks made payable to
Orlando Fernandez and Haydee Costas are dated December 31, 2008 (copies of which were
filed as Attachment #5 to said motion), after the December 29, 2008, deadline.  Plaintiff filed
her motion on January 5, 2009.
Plaintiff contends that the December 29, 2008, deadline was unreasonable.  However,
Plaintiff had from December 22, 2008, to December 29, 2008, an entire week, to oppose the
condition or attempt to negotiate a different date.  The Court finds that by not objecting to
the condition of payment of fees by December 29, 2008, Plaintiff agreed to the condition. 
The Court further finds that Plaintiff’s failure to fulfill the condition justified Defendant’s
cancellation of the depositions.
Accordingly, it is now hereby ORDERED:
1.
Plaintiff’s Emergency Motion to Compel Depositions (Docket No. 132) is
DENIED.
Case: 1:05-cv-00024-TJS   Document #: 134   Filed: 01/06/09   Page 2 of 3
Nieves v. Kmart Corp.
2005-CV-0024
Order Denying Plaintiff’s Emergency Motion to Compel
Page 3
2.
The depositions of Eduardo Soria, MD; Haydee Costas, MD; and Orlando
Fernandez, MD, noticed for January 7, 2009, are CANCELED.
ENTER:
Dated: January 6, 2009
                                /s/                                    
GEORGE W. CANNON, JR.                       
U.S. MAGISTRATE JUDGE
Case: 1:05-cv-00024-TJS   Document #: 134   Filed: 01/06/09   Page 3 of 3