Transcript

Case 5:17-cv-00522-DNH-DEP Document 50 Filed 01/18/18 Page 1 of 39
HEADER 1
1 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
2 ------------------------------------------------------x
MICHAEL JOSEPH ROTONDO,
3 Plaintiff,
4 vs. 5:17-CV-522
5 BEST BUY STORES, LLC,
6 Defendant.
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7
Transcript of a Rule 16 Conference on November 2,
8 2017, at the James Hanley Federal Building, 100 South Clinton
Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES,
9 United States Magistrate Judge, Presiding.
10 A P P E A R A N C E S:
11 Pro Se Plaintiff: 408 Weatheridge Drive

Camillus, New York 13031
12 BY: MICHAEL JOSEPH ROTONDO
13 For the Defendant: CARTER, CONBOY, CASE, BLACKMORE,

MALONEY & LAIRD, P.C.
14 20 Corporate Woods Bouleard
Albany, New York 12211
15 BY: MICHAEL J. MURPHY, ESQ.
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23 Hannah F. Cavanaugh
Official United States Court Reporter
24 100 South Clinton Street
Syracuse, New York 13261-7367
25 (315) 234-8545
HANNAH F. CAVANAUGH, Official Court Reporter

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Rule 16 Conference (5:17-CV-522) Rotondo v. Best Buy Stores 2
1 THE CLERK: The case is Michael Joseph Rotondo versus
2 Best Buy Stores, LLC, 17-CV-522.
3 Can you please note your appearances for the record?
4 MR. ROTONDO: Michael Rotondo, the plaintiff.
5 MR. MURPHY: Michael Murphy from Carter Conboy for
6 Best Buy, your Honor. Good morning.
7 THE COURT: All right. Good morning, gentlemen. As
8 you can see, we're recording these proceedings. And Mr. Rotondo
9 is already doing a great job at speaking into the microphone.
10 And so if we can all make sure that we do that to capture these
11 proceedings that would be helpful.
12 This is a Rule 16 conference. The purpose of this
13 conference is to find out a little bit more about the
14 plaintiff's claims and the defendant's defenses, to discuss how
15 the case will progress and what is anticipated in terms of
16 pre-trial discovery, and then to put in place a schedule that we
17 can discuss that will set certain deadlines for completion of
18 various tasks.
19 So, Mr. Rotondo, I understand that you are suing the
20 defendant. You've raised gender discrimination claims under
21 Title VII of the Civil Rights Act of 1964.
22 In various summary fashion, can you elaborate on that
23 and give me the basic gist of your claims?
24 MR. ROTONDO: I was fired, I was scheduled
25 unnecessarily in a way that was burdensome to me as a single

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1 parent on multiple occasions and continuously. And that's my
2 summary.
3 THE COURT: You -- obviously, it's not enough for
4 them to -- for the defendant, as an employer, to burden you. In
5 order to violate Title VII, they have to treat you differently
6 because of your gender. You allege in your Complaint that
7 females were treated differently.
8 Is that essentially your claim?
9 MR. ROTONDO: Yeah. Yes, that's correct.
10 THE COURT: All right. How -- how long were you
11 employed at Best Buy?
12 MR. ROTONDO: I was employed at two different times,
13 but this most recent time, from the end of 2012 to the end of
14 2015. There was a previous time in 2005 and '06 which I was
15 employed.
16 THE COURT: And you -- I think you're complaining in
17 the case that the termination occurred in early December,
18 December 4th?
19 MR. ROTONDO: Yes.
20 THE COURT: All right. How much were you earning at
21 the time?
22 MR. ROTONDO: $11.01 an hour.
23 THE COURT: And have you -- was that full-time,
24 40 hours?
25 MR. ROTONDO: No, that was part-time.

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1 THE COURT: Okay. How many hours roughly a week
2 average?
3 MR. ROTONDO: 20 --
4 THE COURT: Okay.
5 MR. ROTONDO: -- is what you're supposed to work on
6 average.
7 THE COURT: Okay. And have you become reemployed?
8 MR. ROTONDO: No, I started a computer business.
9 THE COURT: Okay. Self-employed.
10 All right. One of the -- one of the issues will be
11 whether you've mitigated your damages so that when back pay and
12 front pay, if you're entitled to it, is calculated, obviously
13 there would be a deduction for any income that you have received
14 as replacement income for this income. So defendants will
15 obviously need access to that type of information in discovery.
16 As a result of this, did you undergo any psychiatric or
17 psychological treatment or counseling?
18 MR. ROTONDO: No.
19 THE COURT: Okay. All right. And so you are
20 claiming front pay, back pay, you're looking for punitive
21 damages, as I understand it?
22 MR. ROTONDO: Yep, yeah.
23 THE COURT: All right. Mr. Murphy, what is the
24 government -- I'm sorry, the government -- what is the
25 defendant's position?

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1 MR. MURPHY: Your Honor, it's the position of Best
2 Buy that all employees are required -- part-time employees are
3 required to work certain shifts and schedules do include weekend
4 time. And that while there is some flexibility in scheduling,
5 the decisions that were made with respect to Mr. Rotondo were
6 made based upon the best interests of the company. And after
7 continuing efforts to work with him to accommodate his schedule
8 and that -- he refused to make any such accommodations or
9 compromises on his part, and therefore was in violation of
10 company policy.
11 He then abandoned the job. He stopped showing up for
12 shifts. So it's our position that he was not terminated, but,
13 in fact, that it was a job abandonment situation. To the extent
14 that someone might say that he was terminated, it certainly
15 would be because he refused to work the required hours for this
16 position and that had nothing to do with his gender or his
17 status as a parent.
18 THE COURT: Was there a claim filed with the Division
19 of Human Rights or the EEOC?
20 MR. ROTONDO: Yes, both.
21 THE COURT: And was there any investigation conducted
22 by either agency?
23 MR. ROTONDO: Regarding the Department of Human
24 Rights, I'm not sure what they did, however, the EEOC did open a
25 case and seemed to go through some sort of process. However,

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1 all the information I really got from them was just what was on
2 record from both -- from each party and a right to sue letter.
3 THE COURT: All right. Mr. Murphy, do you know
4 whether any findings were made by either agency?
5 MR. MURPHY: Best Buy made submissions to both. The
6 Division of Human Rights dismissed the claim as untimely, but
7 noted in the dismissal that parental status is not covered by
8 the New York State Executive Law and, therefore, was making no
9 finding on that issue.
10 And then this claim, I believe, although it goes over
11 the edges of it a little bit as it's sued, essentially deals
12 with a gender-based parental status claim. And the EEOC issued
13 a dismissal for convenience and a right to sue letter.
14 THE COURT: All right. I received two civil case
15 management plans. I gather that for some reason the two of you
16 were not able confer either in person or by telephone to address
17 the civil case management plan?
18 MR. ROTONDO: That's all described in my letter
19 titled Explanation For Filing Discovery.
20 Did you get a chance to look at that?
21 THE COURT: I know that you filed several documents
22 yesterday, and I was going to address those, but -- so was there
23 no opportunity or -- to confer with Mr. Murphy or his colleague?
24 MR. ROTONDO: I made an attempt 16 days prior to the
25 conference, which was my mistake to -- that I overlooked the

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1 21-day deadline. I was aware of the seven-day deadline. I
2 didn't -- that was the deadline that I considered was the
3 significant deadline. I didn't think that there were other
4 deadlines that were significant, but -- and I had a very serious
5 matter that I was attended to also, which is why I was not more
6 familiar with the case management plan. Anyway, I was no -- not
7 more familiar with the -- with the -- with the notice for the
8 case management plan.
9 But 16 days prior to the case management plan, I
10 contacted Carter and Conboy to ask them specifically what they
11 had in mind for the case management plan, as they're experienced
12 attorneys, and if what they had proposed was acceptable to me, I
13 knew essentially for -- I would know essentially for a fact if
14 they had provided me with something that it would be considered
15 conventional.
16 So I contacted them, I left a message for Mr. Murphy
17 and I did not hear back from them until October 25th a few hours
18 after I had filed my case management plan. I was contacted by
19 Brienna Christiano and she wanted to push everything ahead a
20 whole bunch.
21 For instance, for joinder of parties, she wanted to
22 push that ahead into, I think, even December or January or some
23 tremendously long amount of time. And I knew that it really
24 wasn't -- I knew we weren't going to get anywhere really with
25 a -- with that conference over the phone and I did not want to

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1 refile my case management plan because I had already just filed
2 it and the deadline was the subsequent day.
3 So I said, you know, I really -- I don't want to
4 change any of those days. She said -- and I had in turn asked
5 her if she would meet with me at 9:00 a.m. this morning so I may
6 give her all of my discovery pieces so that she may review them
7 and we may discuss -- so I have this case management plan with
8 those pieces in mind.
9 As you know, I'm not an attorney. She would review
10 them and then she would be able to recognize the significant
11 components of those things for a case management plan and she
12 was unwilling to do that also.
13 So -- and I -- she also -- upon that request to meet
14 with me at 9:00 this morning, she also included that she could
15 not discuss the merits of my case. So I didn't know -- I didn't
16 have anything to do at that point with regard to meeting with
17 good -- in good faith with the defendant's representation
18 because I couldn't go anywhere. I could not make an arrangement
19 for anything that I considered remotely reasonable with the case
20 management plan or establish anything with regard to the case so
21 that I could come in here with an idea of what my
22 representations of the proceedings would look like in
23 conjunction with the defendant.
24 THE COURT: All right. Well, I need to stress to
25 both of you that as you go forward with the discovery process,

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1 there need to be open lines of communication between you and
2 defendant's counsel, Mr. Murphy, who's a very professional
3 attorney. And I have no reason to believe that he will not be
4 fully cooperative with you consistent with his obligation to
5 favorously defend his client. And Ms. Christiano, I'm sure,
6 will be the same.
7 In reviewing the motions that you have made and what
8 you just said, I think you may have some unrealistic
9 expectations about the length of time it will take to go through
10 the process to get this case in position for the filing of a
11 motion and for trial. So one of the things -- do you have a
12 copy of the pro sé handbook?
13 MR. ROTONDO: Yep.
14 THE COURT: All right. And I will also be issuing an
15 order today, which I do in all cases where there are
16 unrepresented plaintiffs, that generally describes the discovery
17 process. That is the next step essentially in the case. So we
18 will be going through the various steps in discovery and we'll
19 talk about what's expected on both sides.
20 Mr. Murphy indicates -- the defendants indicate in
21 their civil case management plan that they have served you with
22 26(a)(1) mandatory disclosures. You have not -- so
23 Rule 26(a)(1) requires you to disclose certain things, such as
24 documents that you intend to rely on at trial, witnesses that
25 you may call at trial that have knowledge of your claims, and a

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1 calculation of damages that you seek.
2 MR. ROTONDO: I had actually mailed both -- both
3 mailed and e-mailed to the defendant that information. I did
4 not, however, provide it to the Court for record. I didn't see
5 in the rules that that was something necessary, so I can provide
6 that.
7 THE COURT: Nope, that's one of the points that I
8 wanted to raise, is that discovery doesn't get filed with the
9 Court unless it becomes necessary either because there's a
10 dispute over discovery or because it becomes relevant to any
11 dispositive motion that's filed.
12 MR. ROTONDO: I was speaking to the disclosure that I
13 had --
14 THE COURT: That's part of discovery. So that
15 doesn't get filed with the Court. Your 26(a)(1) disclosure gets
16 sent to defendant's counsel, but doesn't get filed with the
17 Court.
18 MR. ROTONDO: I did send that to the defendant.
19 THE COURT: Right. Okay. I didn't know that and it
20 wasn't apparent --
21 MR. ROTONDO: Sorry.
22 THE COURT: -- in the civil case management plan.
23 MR. MURPHY: Yes, I have received it, your Honor. I
24 received it after we filed our civil case management plan.
25 THE COURT: Excellent. Okay.

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1 So do -- do either of you intend to serve written
2 discovery demands, interrogatories, document demands, or
3 requests for admissions?
4 MR. ROTONDO: Not at this time.
5 MR. MURPHY: Ours were served yesterday, your Honor.
6 THE COURT: Okay. All right. So have you received
7 those yet?
8 MR. ROTONDO: No, I have not.
9 THE COURT: All right. When you do, you'll have
10 30 days, plus adding three because they were sent to you by
11 mail. You will have 33 days from the day he mailed those to
12 respond.
13 MR. ROTONDO: Okay.
14 THE COURT: And as I indicated, they don't --
15 responses don't get filed with the Court. Anything that you
16 either serve -- any discovery demands you serve or any responses
17 that you serve, you should send a copy to defendant's counsel,
18 keep a copy for yourself with proof of when you mailed it, and
19 then if it becomes necessary later on, you'll have available to
20 you that information.
21 MR. ROTONDO: All right.
22 THE COURT: It does appear that you may be requesting
23 electronically stored information in the form of e-mails or that
24 sort of thing?

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1 THE COURT: Okay. So that is a written demand that
2 will have to be served on defendant's counsel in the form of a
3 Rule 34 document request if you're requesting e-mails.
4 MR. ROTONDO: That's -- is that a subpoena form
5 for --
6 THE COURT: No. It would fall under Rule 24. Any --
7 you can ask any party, and Best Buy is a party -- you can ask
8 them to submit to depositions, you can ask them to answer
9 interrogatories, and ask them to produce documents. And that
10 includes ESI, electronically stored information.
11 MR. ROTONDO: So just so I understand, what you're
12 saying is that for the ESI, I need to send them a request for
13 that --
14 THE COURT: Yes.
15 MR. ROTONDO: -- in the mail, keep a copy for myself,
16 and a record for myself that showed that I mailed it, and then
17 that would provide --
18 THE COURT: Yes.
20 THE COURT: If there are disputes, if there are
21 objections, and you feel you're entitled to information not
22 being provided, you are required to confer before you contact
23 the Court for intervention. So you're required to confer,
24 preferably by telephone, and ask, you know, why it's not being
25 produced.

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1 And there could be negotiations where you might
2 reduce your request so it's not burdensome. And so that process
3 has to occur before you contact the Court and request
4 intervention.
5 MR. ROTONDO: Can I retract my discovery motions?
6 THE COURT: Yeah. We'll go through that in a minute,
7 yes.
9 THE COURT: Mr. Murphy, I assume you intend to depose
10 Mr. Rotondo?
11 MR. MURPHY: Yes, your Honor.
12 THE COURT: Okay. Mr. Rotondo, do you anticipate
13 taking depositions?
14 MR. ROTONDO: I --
15 THE COURT: Do you know what a deposition is?
16 MR. ROTONDO: Yes, when you ask somebody questions
17 through a process.
18 THE COURT: Right. And under oath. You retain a
19 court reporter, the court reporter prepares a transcript, and
20 then it can be used for certain purposes at trial.
21 MR. ROTONDO: I -- that would be more convenient.
22 What I have -- I -- I was seeking testimony. It may be more
23 convenient for depositions, so I will confer with the defendant
24 for -- I'll produce depositions or the documents that I need for
25 that and send them to them to see if I can get that to -- get

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1 that information via depositions.
2 So I will try to do -- yes, depositions, there will
3 be some.
4 THE COURT: All right. Expert disclosure, you didn't
5 indicate that you intend to retain any experts; is that correct?
6 MR. ROTONDO: That's correct, but the ESI may -- it's
7 possible that I could involve some expert witnesses.
8 THE COURT: And, Mr. Murphy, your civil case
9 management plan suggests that defendant may retain experts; is
10 that correct?
11 MR. MURPHY: It did, your Honor.
12 THE COURT: Okay.
13 MR. MURPHY: That related to the possibility that
14 there might be a claim for something other than garden variety,
15 emotional damages, and any issues that might come up with
16 respect to back and front wage claims.
17 THE COURT: All right. So both of you should take
18 note. What I'll be issuing today as a result of this proceeding
19 is what's called the uniform pre-trial scheduling order. And
20 that will be the bible. That will be the schedule that will
21 govern the progression of this case.
22 And that scheduling order will include a sequence for
23 expert disclosure, so if you decide to retain an expert, that
24 uniform pre-trial scheduling order would require you to disclose
25 the identity and qualifications of your expert and a report at

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1 least 90 days before the deadline we set for close of discovery.
2 And then the defendants have until 45 days before the close of
3 discovery to serve any expert reports. And you have 30 days
4 before the close of discovery to serve any rebuttal expert
5 reports.
6 MR. ROTONDO: Is that all going to be in the
7 discovery thing that you were describing that you'll provide me
8 with?
9 THE COURT: It will, yes.
10 MR. ROTONDO: All right. I'll review that
11 thoroughly.
12 THE COURT: And that really also contains all the
13 information you need concerning pre-trial submissions and so
14 forth.
15 Mr. Murphy indicated that a protective order might be
16 required if confidential personal information concerning other
17 employees is demanded. And so Mr. Murphy, if he decides that he
18 needs a protective order -- what that means is it would just
19 restrict the use of any information that is deemed confidential
20 to this case. You couldn't go out and publish it outside of the
21 context of this lawsuit.
22 MR. ROTONDO: Does that include the names of
23 employees exclusively?
24 THE COURT: I don't know if he -- if he believes that
25 that's confidential information. I can't speak for him.

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2 THE COURT: But certainly, private information
3 concerning employees, he would have a right to request that you
4 stipulate to a protective order. And if you refuse, then he can
5 apply to the Court for a protective order. And under that
6 protective order, it would basically say he could designate as
7 confidential anything that he believes is trade secret,
8 proprietary, private information.
9 You would have the right to challenge that
10 designation. You'd still get the information and you could
11 still use it in this lawsuit, you just couldn't use it for any
12 other purpose.
13 MR. ROTONDO: Can you give me an example of another
14 purpose, just one?
15 THE COURT: Yeah, you can't go to the newspaper and
16 say, look what I've got, Mary Smith was earning -- was scheduled
17 differently than I was and I have proof of it. If that document
18 is labelled confidential, then you couldn't do that.
19 MR. ROTONDO: I understand.
20 THE COURT: Okay.
21 MR. MURPHY: Your Honor, the defendant also reserves
22 for itself the right to request that certain information may be
23 redacted altogether, so that, for instance, Mr. Rotondo --
24 THE COURT: Social Security numbers.
25 MR. MURPHY: Exactly. Personal identifying

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1 information, Social Security numbers wouldn't be available to
2 the plaintiff.
3 THE COURT: Right. And we can talk about that, but
4 that's certainly a common practice. Social Security numbers are
5 inherently private and not very useful to you.
6 MR. ROTONDO: No.
7 THE COURT: Okay. All right. So do you have any
8 questions about discovery that we have just gone through?
9 MR. ROTONDO: Nope, no.
10 THE COURT: Okay. So you have -- and I don't know if
11 Mr. Murphy has had an opportunity to review the motions, but
12 you've served -- you filed yesterday certain motions. I wanted
13 to address those.
14 One of those motions was a motion to amend your
15 Complaint. And it was unclear to me what -- what you intended
16 to amend, in other words what you had -- how you intended to
17 change your Amended Complaint that is already on file.
18 MR. ROTONDO: I wanted to add a fourth cause of
19 action and I have added two facts.
20 THE COURT: Okay.
21 MR. ROTONDO: Would you like me to read those to you?
22 THE COURT: Well, let me -- let me outline for you
23 the process. So you've already amended your Complaint once.
24 And in any event, you no longer have the right to amend as a
25 matter of right without court order because you would've had to

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1 do that within 21 days of the filing of an Answer. And the
2 Answer was filed on September 8th, so your 21 days are gone.
3 You can do it on court order. And the court order
4 can be obtained in one of two ways, either by stipulation,
5 meaning that the defendant consents or on a contested motion.
6 So here's the process: You prepare your proposed
7 Second Amended Complaint, a fully integrated Complaint that
8 would replace the one that is currently on file, you send it to
9 Mr. Murphy and ask if he will consent to the filing of the
10 Amended Complaint. If Mr. Murphy declines, then you have my
11 permission at that point to file a motion for leave to amend and
12 you have to attach the proposed Amended Complaint, our local
13 rules require that, Local Rule 7.1(a)(4), and you have to
14 summarize -- and you kind of did that here, you have to
15 summarize what changes you made.
16 Mr. Murphy would then have an opportunity to respond
17 and will have, if I deem it appropriate, oral argument and I'll
18 decide whether to permit the amendment.
19 And I should note also that in your motions you've set
20 forth some time limits, but those seem to be -- I think they're
21 based on State Court CPLR. Our timeframes are different in
22 Federal Court and our local rules set out the timing for
23 motions.
24 And, frankly, I don't follow those. When you file a
25 motion, I normally set a briefing schedule and deadline for the

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1 defendant to respond and then I set a hearing date.
2 So you say you must serve -- I serve these papers at
3 least eight days before the motion scheduled to be heard, you
4 must serve answering papers at least two days before. Actually,
5 7.1 of our local rules sets a different schedule. And for any
6 dispositive motion, if I recall correctly, it's -- 31 days
7 before the motion return date is when you have to file it --
8 your papers, answering papers, 17 days before the return date,
9 and, replies, 10 days or 13 days.
10 MR. MURPHY: I think it's 10.
11 THE COURT: One of the two. I think it's 10.
12 So you want to take a look at Local Rule 7.1 because
13 that -- that controls all of the motions, really, and gives you
14 the information you need to make a motion.
15 MR. ROTONDO: With regard to all that, there -- this
16 is a template from State Court that I have for a notice on
17 motion, so I'll just change -- I figured it was the same. I'll
18 just change it.
19 THE COURT: Right. So what I'm going to do is I'm
20 going to strike your motion for relief to amend without
21 prejudice to your right to go through that process I just
22 outlined.
23 Do you have any questions about the process?
24 MR. ROTONDO: No, but I was going to mention that
25 Mr. Murphy -- I tried to serve Mr. Murphy with everything before

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1 we had started. He said that he already had everything. So
2 he's received it. Except for the errors in the notice of
3 motion, it should comply with everything.
4 THE COURT: No. For example, like I just said, you
5 have to include a fully integrated Complaint with your motion
6 papers.
7 MR. ROTONDO: I think it's -- I think it's in there.
8 THE COURT: If it was, it wasn't scanned because I
9 only have --
10 MR. ROTONDO: Do you want Mr. -- Mr. Murphy, did you
11 receive that? Mr. Murphy, did you receive the Amended
12 Complaint?
13 MR. MURPHY: I received a -- a -- what is entitled an
14 Amended Complaint, but I think it should be called a Proposed
15 Second Amended Complaint. It was docket 26-1.
16 But, your Honor, as I understand the procedure and as
17 you have laid it out today, I believe Mr. Rotondo still may be
18 skipping a step. He still has to send it to me, request my
19 consent or not, and then move on to the motion.
20 THE COURT: Right. Why don't you do this -- I may
21 have missed 26-1.
22 So, Mr. Murphy, why don't you -- I'll give you -- how
23 much time do you reasonably need to indicate whether you consent
24 or oppose the requested amendment?
25 MR. MURPHY: Ten days, your Honor.

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1 THE COURT: All right. I'll give you till next
2 Friday. How's that? So by November 10th -- well, that's a
3 Federal holiday. November 13th, Mr. Murphy, you indicate to the
4 Court and to you whether he consents.
5 If he consents, then I'll authorize the filing of the
6 Second Amended Complaint. If he doesn't, then I'll give him the
7 deadline for -- well, that will be his deadline for filing
8 opposition papers and then I'll schedule a hearing.
9 MR. ROTONDO: Do you want a -- I have an extra copy
10 of that.
11 THE COURT: No, I'm sure it must be on the docket.
12 If Mr. Murphy found it, then I should be able to get it.
14 THE COURT: All right. You've also requested trial
15 subpoenas. And that's a process that is very premature. The
16 case is nowhere near trial ready. You obviously have the right
17 to request trial subpoenas at the time a trial is scheduled.
18 Now, if you want to take -- if you want to take a
19 deposition of someone that is not a party, for example, you'd
20 like to take a deposition of a supervisor at Best Buy, you could
21 request a Rule 45 subpoena and serve it on that person to
22 request their presence, but the proper -- the better procedure
23 would be to ask the defendants if they will voluntarily produce
24 that witness for deposition and work out the timing of the
25 deposition so that it's convenient to you, to Mr. Murphy, and

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1 the witness.
2 MR. ROTONDO: Okay. I just want to clarify one
3 thing. For a Rule 45 request, I would be sending that to the
4 defendant requesting that of them to voluntarily provide that
5 deposition?
6 THE COURT: Yeah, you don't have send the subpoena to
7 them, you just send them a notice. And it can be in letter
8 form. I mean, we're not going to stand on ceremony, but you
9 need to set -- tell Mr. Murphy I would like to depose
10 Mary Smith, will you voluntarily produce her, and what dates
11 would be convenient for the deposition, you know, something
12 along those lines.
14 THE COURT: If he refuses or says you'll have to
15 subpoena Mary Smith, then you can request from the Court a
16 Rule 45 subpoena, you can have it served with one day's witness
17 fees and mileage on the witness, and you must send Mr. Murphy a
18 notice of the date that you have selected for the deposition.
19 And he's obviously entitled to appear and cross examine the
20 witness.
21 MR. ROTONDO: And that is pre-trial?
22 THE COURT: That's part of discovery.
23 MR. ROTONDO: And that would be, like, in this
24 building? It wouldn't --
25 THE COURT: No --

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1 MR. ROTONDO: It would be --
2 THE COURT: -- not necessarily.
3 It's normally -- I mean, we can make a room available
4 to you. Mr. Murphy may request that your deposition be taken
5 somewhere other than the courthouse. He has that right. It's
6 not necessary that it occur in the courthouse.
7 MR. ROTONDO: So it may or may not be presided over?
8 THE COURT: It won't be presided over.
9 MR. ROTONDO: Oh, okay. That's what my familiarity
10 was before, that it would not.
11 THE COURT: Right.
12 Anything to add, Mr. Murphy?
13 MR. MURPHY: No, your Honor.
14 THE COURT: Okay. Any questions about that process?
15 MR. ROTONDO: No.
16 THE COURT: All right. So I'm going to strike
17 request number 27 through 35 as premature. So 26 will remain
18 on.
19 I frankly didn't understand -- and I didn't have a
20 great deal of time this morning to review it. I didn't
21 understand your motion number 36. It's -- it's characterized as
22 motion for summary judgment, but it really doesn't look like a
23 motion for summary judgment. Is it --
25 THE COURT: It didn't -- you know, a motion for

(315) 234-8545
1 summary judgment is supposed to include a statement on material
2 facts not in dispute. Your statement of material facts is kind
3 of conclusory. It just says you were discriminated against on
4 the basis of your gender. It really isn't very helpful to the
5 Court.
6 And you have every right to make a motion for summary
7 judgment at this point. It's -- it is kind of premature. And
8 the defendants may -- may oppose your motion by saying we need
9 discovery as Rule 56(d) proposed them with a basis to say we
10 need discovery before we can oppose this motion and here's what
11 discovery we need that we don't have.
12 But if you would like that motion to go forward,
13 that's fine. It is a motion that will be addressed to the
14 district judge, Judge Hurd. He will decide a summary judgment
15 motion.
16 MR. ROTONDO: I would like it to go forward. I --
17 sorry if it's not --
18 THE COURT: Okay.
19 MR. ROTONDO: -- conventional.
20 THE COURT: All right. Then we'll pass along to
21 Judge Hurd's courtroom deputy that that motion is pending and
22 he'll set a briefing schedule.
23 MR. ROTONDO: Was that number 26 you referred to,
24 filing number 26 or something?
25 THE COURT: 26 was the motion to amend and I said

(315) 234-8545
1 we're leaving that on. This is -- 36 is the motion for summary
2 judgment.
3 MR. ROTONDO: Okay. Okay.
4 MR. MURPHY: Your Honor, may we discuss that for a
5 moment?
6 THE COURT: Yes.
7 MR. MURPHY: I understand Mr. Rotondo has a right to
8 have this motion heard, but not only is the statement of
9 material facts totally conclusory, to the extent that he
10 attempts to support it at all, he's attempting to support it
11 with the previous filings for subpoenas so that he can get
12 documents to support a motion for summary judgment.
13 So he's supporting -- attempting to support a motion
14 for summary judgment based upon documents that he doesn't even
15 have in hand yet.
16 THE COURT: Right. And I -- I will say that your
17 motion is destined to be denied because you -- you must submit
18 to the Court with your motion sufficient evidence -- not
19 anticipated evidence, sufficient evidence to demonstrate that
20 there are no issues of material fact and that you're entitled to
21 judgment as a matter of law on your claims.
22 And merely saying to Judge Hurd, I'm going to get the
23 evidence that you need to give me summary judgment, is not good
24 enough. I mean, it's basically going to be a waste of his time
25 and your time.

(315) 234-8545
1 MR. ROTONDO: All right. Then I'll withdraw it.
2 THE COURT: I think you should without prejudice to
3 renewal once you've obtained the information that you need.
5 THE COURT: All right. I will -- I think that's a
6 good idea. So I will accept your withdrawal without prejudice
7 of docket number 36.
8 Now, let's talk about the expectations of the case.
9 You've -- you've heard me discuss what needs to be done to get
10 the case trial ready. It ain't going to happen between now and
11 December 2nd.
13 THE COURT: Okay. So let's look at a realistic
14 schedule.
15 First of all, do you intend to join any additional
16 parties?
17 MR. ROTONDO: No, I do not.
18 THE COURT: All right. So joinder is closed.
19 You don't see any need to keep joinder open, do you,
20 Mr. Murphy?
21 MR. MURPHY: Not that with that representation, your
22 Honor.
23 THE COURT: All right. But there is an Amended
24 Complaint to be dealt with, so I'm going to make amendment of
25 pleadings, the deadline, December 31st. So that's the deadline.

(315) 234-8545
1 If you have any further thoughts of amending, you need to
2 initiate that process by December 31st.
3 I think the -- the proposal of the defendants for
4 discovery of May 2nd is not unreasonable. I think it's
5 ambitious, but it -- given all that we have to accomplish, but I
6 think it can be done. So I'm going to set completion of
7 discovery for 5/2.
8 You'd be surprised how long it will take to go through
9 the steps, because you have to Mr. Murphy's demands, you may
10 make demands on him. Then after that happens, which won't
11 happen for 33 days, then you can start talking about
12 depositions.
13 And depositions, in my view, won't get -- won't get
14 held until March -- February or March in this case. Just that's
15 the reality and my experience.
17 THE COURT: So July 2nd for filing of any dispositive
18 motions. As I said before, you can file them at any time
19 between now and then, but that's the last date on which a
20 dispositive summary judgment or a judgment on the pleadings
21 motion can be filed.
22 In terms of trial, you think it will take two days,
23 they think it will take 14. I think both of those are -- I
24 question --
25 MR. ROTONDO: I think I said one day.

(315) 234-8545
1 THE COURT: Oh, you said one day?
2 MR. ROTONDO: Yeah, before the second day of
3 February, I think approximately one day.
4 THE COURT: The problem is once you -- jury selection
5 and opening statements alone take at least a half a day.
7 THE COURT: So I think this is a case that can be
8 tried in three to five days. And, again, this is not binding on
9 the trial judge, this is just a preliminary estimate --
11 THE COURT: -- for planning purposes.
12 There is a jury demand. I'll indicate that you both
13 have requested Syracuse. If Judge Hurd tries the case, it will
14 be tried in Utica. That's the only place he tries cases and
15 he's your assigned district judge. If the parties consent to my
16 jurisdiction, I will try it in Syracuse.
17 Have you had any settlement discussions?
18 MR. ROTONDO: None.
19 THE COURT: Is the defendant insured in this case?
20 MR. MURPHY: No, your Honor.
21 THE COURT: Self-insured?
23 THE COURT: What is the defendant's position? Do you
24 believe that it is a no pay absolutely for the time being or do
25 you think that there would be any useful purpose to be served in

(315) 234-8545
1 putting this into an assisted mediation?
2 MR. MURPHY: Your Honor, I think that decision would
3 be made if we receive a settlement demand or once we receive a
4 settlement demand from the plaintiff.
5 THE COURT: Okay. Fair enough.
6 Have you thought about any kind of a demand for
7 settlement and what that amount would be?
8 MR. ROTONDO: Not particularly. I've mostly been
9 trying to muster a case that's inclusive of the facts so that
10 from that we can worry about settlement.
11 And I have a question. I've seen what ADH -- the --
12 how is that different than -- or what is that?
13 THE COURT: What is a --
14 MR. MURPHY: ADR?
15 MR. ROTONDO: ADR, I think. The administrative --
16 I'm sorry, the --
17 THE COURT: It's alternative dispute resolution.
19 THE COURT: This is not a mandatory ADR case because
20 you are a pro sé litigant. We have what's called an assisted
21 mediation program, which is what I was referring to, where I can
22 assign an attorney to represent you pro bono, free of charge,
23 donating his or her services for the limited purpose of
24 preparing for and participating in mediation.
25 I generally preside over those mediations or

(315) 234-8545
1 settlement conferences. And that's what I was inquiring, but I
2 would only do that if once I -- once both parties said to me, we
3 think this case could potentially be settled and that could be a
4 fruitful process.
5 And so for that to happen, Mr. Murphy really needs to
6 know what you're looking for, if it is reasonable in his view,
7 and would his clients be willing to offer something that might
8 be of interest to you to settle the case given what your demand
9 is. And so if you formulate a demand and send it to Mr. Murphy
10 and Mr. Murphy says to the Court, gee, I think assisted
11 mediation could be productive, then I will set that up.
12 MR. ROTONDO: Does that attorney -- that pro bono
13 attorney that you would assign, would that person be entitled to
14 a contingency fee?
15 THE COURT: No.
17 THE COURT: They're donating their services as
18 officers of the Court, part of their duties as lawyers. So I
19 guess you should go through that process and let Mr. Murphy
20 know. Don't let the Court know. Don't file it, just let
21 Mr. Murphy know what your demand might be.
22 I might ask you at your next conference what your
23 demand is and if there have been any offers, but don't put
24 anything on the public record.
25 MR. ROTONDO: I will -- I'll send a copy of the

(315) 234-8545
1 demand, I'll keep a copy for myself, and I'll keep something
2 that shows that I have mailed it.
3 THE COURT: All right. So I want to schedule our
4 next conference, which would be by telephone, and I am -- I am
5 looking at February 8th at 3:30.
6 Do either of you have a conflict that you know of for
7 that date and time? If you develop one, I can certainly change
8 it for you.
9 MR. MURPHY: I do not, your Honor.
10 THE COURT: All right. Mr. Murphy, can we prevail
11 upon you to place the call?
13 THE COURT: All right. And is the information that
14 you provided to the Court still accurate in terms of your
15 contact information, Mr. Rotondo, the 408 Weatheridge Drive
16 address?
18 THE COURT: And the 415-3084 telephone number?
20 THE COURT: All right. If there are any changes,
21 kindly let us know and Mr. Murphy so we can keep in touch with
22 you.
23 Do you have any questions for me? Any final
24 questions?
25 MR. ROTONDO: Not at this time, no.

(315) 234-8545
1 THE COURT: All right.
2 MR. ROTONDO: Actually one.
3 THE COURT: Okay.
4 MR. ROTONDO: I would -- one of the reasons that I
5 considered the -- sending the summary judgment off and not
6 withdrawing it was because I would have liked some feedback from
7 the Court regarding it so that it could be better or more -- you
8 know, more conventional, more clear.
9 Do I have any -- I don't have any -- do I have any
10 way of doing that without counsel from --
11 THE COURT: You don't need counsel for that, but you
12 need evidence. So --
14 THE COURT: -- if you develop evidence that there are
15 female employees that were given scheduling accommodations that
16 you weren't or something that would definitively show that no
17 reasonable jury could rule against you, then that would be a
18 proper motion for summary judgment.
19 MR. ROTONDO: I understand.
20 THE COURT: All right. Anything further from the
21 defendant?
22 MR. MURPHY: Your Honor, may we discuss the issue of
23 depositions for a moment? I have found that in cases in which
24 there are pro sé plaintiffs, some of the plaintiffs sometimes do
25 not understand that the deposition is to be conducted under oath

(315) 234-8545
1 and on the record.
2 I don't want to show up at a deposition with
3 witnesses and not have a stenographer present and have to take
4 the position with Mr. Rotondo that my client will not respond to
5 questions. And so I -- that's just an issue I've run into in
6 the past.
7 THE COURT: Right. Well, he will -- he will review
8 Rules 30 and 31 of the Federal Rules of Civil Procedure where it
9 sets out the obligations of a party requesting to take a
10 deposition.
11 So it will be your responsibility to indicate in a
12 notice to the defendants how you intend to make a record of the
13 deposition and the defendants will then have the right to choose
14 at their expense a different method. So you will also have to
15 make arrangements for someone that -- the presence of someone
16 who can administer an oath.
17 So, typically, it's done by a court reporter that you
18 retain that can both administer the oath and take down the
19 questions and answers and develop a transcript.
20 MR. ROTONDO: So I do have the availability of the
21 Court resources for -- no?
22 THE COURT: No, that's something that has to be
23 done --
24 MR. ROTONDO: Privately?
25 THE COURT: -- on your own.

(315) 234-8545
1 Now, you have the right -- you can look at the rules.
2 If he has -- if you can make arrangements with the presence of
3 someone to administer an oath, you could say, I'm going to tape
4 record it or I'm going to video record it. And then Mr. Murphy
5 has the right to say, I would like to have a court reporter
6 present at my expense.
7 You can look at the rules and that's what the rules
8 provide. But you have to notify him how you intend to record it
9 when you -- when you set-up the deposition.
10 MR. ROTONDO: Who has the capacity to administer an
11 oath?
12 THE COURT: Notary Publics.
13 MR. ROTONDO: Is it in the rules?
14 THE COURT: It just -- the rule says an officer
15 authorized to administer oaths.
17 THE COURT: All right. Thank you all.
18 MR. MURPHY: Thank you, your Honor.
19 MR. ROTONDO: Thanks.
20 THE CLERK: Court's adjourned.
21 (A discussion was held off the record.)
22 THE COURT: Do I understand there's an issue?
23 MR. MURPHY: There is an issue, your Honor.
24 As we were packing up, Mr. Rotondo handed me the
25 Notice of Deposition, which I served on him with my Answer. And

(315) 234-8545
1 that was a Notice of Deposition with a date of December 12th.
2 I explained to Mr. Rotondo that that was a control
3 date, that was just put in for administrative purposes when I
4 served the Notice, but that after he responded to the
5 interrogatories and Request for Production of Documents that we
6 will then confer and that we would schedule his deposition at a
7 date that was mutually convenient for us.
8 I believe Mr. Rotondo's position is that he would
9 either have to consent to that or that the Court would have to
10 order him to attend a deposition and -- otherwise, he would not
11 have to attend a deposition in this matter. I thought the Court
12 explained clearly to the satisfaction of both the plaintiff and
13 defense counsel the process for having a defense witness deposed
14 and that same process would apply for the plaintiff.
15 I didn't hear any objection from Mr. Rotondo when the
16 Court was explaining that process with respect to the defense
17 witness, so I thought it best, rather than get involved in a
18 long exchange communication between Mr. Rotondo and myself and
19 then eventually the Court, that we try to talk about this issue
20 right now. And I would hope that the Court -- well, I'll let
21 the Court rule as it will.
22 But it is our position that we do not need court
23 intervention, we served a Notice, we agreed on a date we'd
24 conduct Mr. Rotondo's deposition pursuant to the Federal
25 Rules -- excuse me, the amount of hours that are provided for in

(315) 234-8545
1 the Federal courts.
2 MR. ROTONDO: I don't want to go -- I'm not
3 interested in travelling out there and getting deposed. I'm
4 also not interested in being deposed for infinite questions.
5 I'm also not interested in being deposed for seven hours. I
6 don't wish to do that.
7 Do I have to?
8 THE COURT: Yes.
9 MR. ROTONDO: Oh, all right. Seven whole hours?
10 THE COURT: You're a plaintiff in a lawsuit, the
11 defendants are entitled to depose you up to seven hours --
12 MR. ROTONDO: Oh, geez.
13 THE COURT: -- on notice.
14 And Mr. Murphy correctly describes the process that
15 is normally followed. You serve a Notice of Deposition and then
16 you negotiate over a convenient time for the deposition.
17 MR. ROTONDO: Don't I have the right to limit the
18 timeframe and the number of questions?
19 THE COURT: No.
20 MR. ROTONDO: None at all?
21 THE COURT: Not within seven -- within seven hours.
22 The Federal Rules provide for up to seven hours. Now, if --
23 if -- if you believe that questions are being abusive or you're
24 being harassed, you have the right to request that the
25 deposition be adjourned and you can apply to the Court for a

(315) 234-8545
1 protective order.
2 I have no reason to believe that Mr. Murphy and his
3 colleagues will not act professionally and use only the amount
4 of time that is necessary to probe your case, but they have the
5 right to do that.
6 And let me say one other thing to head off any
7 issues: You don't have the right to refuse to answer questions
8 unless they call for a privileged communication. If you had
9 talked to a lawyer and they were to ask you a question about
10 what did the lawyer tell you, that's a privileged communication
11 and you have the right to refuse to answer that. Otherwise, no
12 matter how bad the question is, how irrelevant you think it is,
13 you have to answer the question.
14 You have to understand, though, that trial -- that
15 transcript is -- number one, is not going to be offered
16 wholesale normally at trial. And secondly, the rules provide
17 that any objections, other than to the form of the question, are
18 reserved until the time of trial. So if you believe there's an
19 issue of relevance, for example, of the question and answer, at
20 the time of trial, if the defendants attempt to use that
21 question and answer as an admission, you have the right to
22 object and the trial judge would then make a ruling.
23 If you -- if you object to the form of the question
24 because it's a compound question, something of that nature, your
25 response should be objection to form and then you should answer

(315) 234-8545
1 the question.
2 MR. ROTONDO: All right. I understand.
3 MR. MURPHY: Thank you. Yes, your Honor.
4 MR. ROTONDO: Thank you.
5 THE CLERK: Court's adjourned.
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(315) 234-8545
2 CERTIFICATE OF OFFICIAL REPORTER
4 I, HANNAH F. CAVANAUGH, Official Court Reporter, in and
5 for the United States District Court for the Northern District
6 of New York, DO HEREBY CERTIFY that pursuant to Section 753,
7 Title 28, United States Code, that the foregoing is a true and
8 correct transcript of the stenographically reported proceedings
9 held in the above-entitled matter and that the transcript page
10 format is in conformance with the regulations of the Judicial
11 Conference of the United States.
12
13 Dated this 18th day of January, 2018.
14
15 /S/ HANNAH F. CAVANAUGH_______
16 HANNAH F. CAVANAUGH
17 Official U.S. Court Reporter
18
19
20
21
22
23
24
25

(315) 234-8545

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Case 5:17-cv-00522-DNH-DEP Document 50 Filed 01/18/18 Page 1 of 39

1 UNITED STATES DISTRICT COURT

5 BEST BUY STORES, LLC,

11 Pro Se Plaintiff: 408 Weatheridge Drive

13 For the Defendant: CARTER, CONBOY, CASE, BLACKMORE,

HANNAH F. CAVANAUGH, Official Court Reporter

Rule 16 Conference (5:17-CV-522) Rotondo v. Best Buy Stores 2

1 THE CLERK: The case is Michael Joseph Rotondo versus

2 Best Buy Stores, LLC, 17-CV-522.

3 Can you please note your appearances for the record?

4 MR. ROTONDO: Michael Rotondo, the plaintiff.

5 MR. MURPHY: Michael Murphy from Carter Conboy for

6 Best Buy, your Honor. Good morning.

7 THE COURT: All right. Good morning, gentlemen. As

9 is already doing a great job at speaking into the microphone.

10 And so if we can all make sure that we do that to capture these

11 proceedings that would be helpful.

12 This is a Rule 16 conference. The purpose of this

13 conference is to find out a little bit more about the

14 plaintiff's claims and the defendant's defenses, to discuss how

15 the case will progress and what is anticipated in terms of

16 pre-trial discovery, and then to put in place a schedule that we

17 can discuss that will set certain deadlines for completion of

19 So, Mr. Rotondo, I understand that you are suing the

20 defendant. You've raised gender discrimination claims under

21 Title VII of the Civil Rights Act of 1964.

22 In various summary fashion, can you elaborate on that

23 and give me the basic gist of your claims?

24 MR. ROTONDO: I was fired, I was scheduled

25 unnecessarily in a way that was burdensome to me as a single

HANNAH F. CAVANAUGH, Official Court Reporter

Rule 16 Conference (5:17-CV-522) Rotondo v. Best Buy Stores 3

1 parent on multiple occasions and continuously. And that's my

3 THE COURT: You -- obviously, it's not enough for

4 them to -- for the defendant, as an employer, to burden you. In

5 order to violate Title VII, they have to treat you differently

6 because of your gender. You allege in your Complaint that

7 females were treated differently.

8 Is that essentially your claim?

9 MR. ROTONDO: Yeah. Yes, that's correct.

10 THE COURT: All right. How -- how long were you

11 employed at Best Buy?

12 MR. ROTONDO: I was employed at two different times,

16 THE COURT: And you -- I think you're complaining in

17 the case that the termination occurred in early December,

19 MR. ROTONDO: Yes.

20 THE COURT: All right. How much were you earning at

22 MR. ROTONDO: $11.01 an hour.

23 THE COURT: And have you -- was that full-time,

25 MR. ROTONDO: No, that was part-time.

HANNAH F. CAVANAUGH, Official Court Reporter

Rule 16 Conference (5:17-CV-522) Rotondo v. Best Buy Stores 4

1 THE COURT: Okay. How many hours roughly a week

4 THE COURT: Okay.

5 MR. ROTONDO: -- is what you're supposed to work on

7 THE COURT: Okay. And have you become reemployed?

8 MR. ROTONDO: No, I started a computer business.

9 THE COURT: Okay. Self-employed.

10 All right. One of the -- one of the issues will be

12 front pay, if you're entitled to it, is calculated, obviously

14 as replacement income for this income. So defendants will

15 obviously need access to that type of information in discovery.

16 As a result of this, did you undergo any psychiatric or

17 psychological treatment or counseling?