Opinion
Case No. CV 07-05053 DDP (CTx).
December 3, 2008
ORDER GRANTING IN PART MOTION FOR SANCTIONS; ORDERING DEPOSITION OF PLAINTIFF
I. BACKGROUND
The instant motion for sanctions arises from a suit for discrimination and retaliation by Plaintiff Anton Prejean against Defendants.
On November 9, 2007, Plaintiff's attorney of record was served by mail with a noticed deposition directing Plaintiff to appear at 10 a.m. on November 28, 2007 at the offices of Defendants' counsel in Los Angeles. (Diep Decl., Ex. A.) Two days before this deposition, on November 26, 2008, Plaintiff notified Defendants that he objected to the deposition, on the grounds that he resided in Cibolo, Texas. (Diep Decl., Ex. D, E.) On November 28, 2007, Plaintiff also advised Defendants that he was unable to travel "at this time" due to "medical conditions," although he did not describe what his condition was, how long it might last, how it limited his ability to travel or be deposed, or provide any other information. (Diep Decl., Ex. F.) Plaintiff filed a First Amended Complaint on December 18, 2007.
On January 24, 2008, Defendants served by mail a second noticed deposition to Plaintiff's counsel directing Plaintiff to appear on March 17, 2008, again at Defendants' offices in Los Angeles. (Diep Decl., Ex. B.) Plaintiff failed to appear, without any excuse.
On March 17, 2008, Defendants served by mail a third noticed deposition for April 1, 2008, this time located at the offices of Continental Court Reporters in San Antonio, Texas. (Diep Decl., Ex. C.) Defendants' counsel then traveled to San Antonio, Texas. Plaintiff again failed to appear. Plaintiff filed a Second Amended Complaint ("SAC") on April 25, 2008.
The deadline for discovery in this case was October 1, 2008. (Order, August 21, 2008.) Defendants filed their first and only motion to compel Plaintiff's deposition on September 29, 2008, two days before the discovery deadline; which was denied as untimely by Magistrate Judge Carolyn Turchin. (Order, September 30, 2008.) Trial is currently scheduled to begin on January 13, 2009.
Defendants now move for sanctions under Federal Rule of Civil Procedure 37. Specifically, Defendants seek monetary sanctions, in addition to dismissal or evidentiary sanctions. Defendants filed this motion on October 30, 2008. Plaintiff has not filed an Opposition to the Motion.
Defendants improperly styled their motion as a "Motion to Dismiss for Failure to Attend Deposition or Alternatively, Motion for Evidentiary and/or Monetary Sanctions." This title is misleading. As discussed infra, any motion under Rule 37(d) is for sanctions. Furthermore, monetary sanctions are required if sanctions are granted under Rule 37(d), and dismissal or evidentiary sanctions are discretionary.
II. LEGAL STANDARD
A party to a lawsuit may take the deposition of any other party without leave of court. Fed.R.Civ.P. 30(a)(1). No deposition may be taken without "reasonable written notice" which states the "time and place of the deposition and, if known, the deponent's name and address." Id.
Where a party fails to appear for its own deposition after proper notice, the court may order sanctions if the other party moves for them. Fed.R.Civ.P. 37(d)(1)(A)(i). Sanctions for a party's failure to appear at a deposition may include:
1) directing that certain facts be taken as established for the purposes of the action;
2) prohibiting the party from supporting or defending certain claims, defenses, or evidence;
3) staying proceedings until the court's order is obeyed;
4) dismissing the action in whole or in part; or
5) rendering default judgment against the disobedient party.
Fed.R.Civ.P. 37(d)(3). However, if sanctions are awarded under Rule 37, they must include "reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Id. Sanctions may be granted against the attorney or the party failing to act. Id.
III. DISCUSSION
On three occasions, Plaintiff failed to appear for his noticed deposition. Two of these absences were unaccompanied by any excuse. This is sanctionable conduct under the terms of Rule 37(d). Defendants should not have to bear the costs of traveling to Texas for a noticed deposition, only to find that Plaintiff has not bothered to appear or advise them of his inability to attend the deposition. Plaintiff has submitted costs and fees in the amount of $2,722.17, as well as a declaration describing how this amount was calculated. (See Diep Decl. ¶ 11-14.) The Court therefore grants Defendants' motion for fees against both Plaintiff and his counsel.
Defendants' Motion also seeks terminating or evidentiary sanctions and requests that the Court prohibit Plaintiff's testimony at trial. However, Defendants had a responsibility to affirmatively enforce their discovery rights. Plaintiff failed to appear for his third deposition on April 1, 2008. As this was preceded by two other instances where Plaintiff had failed to appear, it is unclear why Defendants traveled to Texas without a court order or other guarantee that he would be present.
Defendants also then waited six months, until two days before the discovery deadline, to file an untimely motion to compel. Evidentiary and terminating sanctions are thus not appropriate, because Defendants share some blame for delaying too long in enforcing their discovery rights. On the other hand, permitting Plaintiff to testify without being deposed will likely disadvantage Defendants; and Plaintiff should not be rewarded for his repeated misconduct.
Defendants acknowledge that the Court may extend the discovery deadline for Plaintiff's deposition, but argue this would "unfairly extend the trial date" and "reward Prejean's conscious misconduct," because Plaintiff has "not participated in proving his own claims." (Mot. 9.) The Court disagrees. Holding a deposition promptly from the date of this Order will not delay the trial and would aid the parties greatly in presenting facts and argument. Plaintiff's deposition is also necessary to give the trier of fact the opportunity to reach a decision based on a full hearing on the merits. Holding Plaintiff's deposition is also the only way at this point for the Court to avoid unfair prejudice to either side, where both have failed to enforce their rights.
As such, the Court will re-open discovery for the limited purpose of obtaining Plaintiff's deposition. The Court orders Plaintiff to appear for a deposition within 10 days of the date of this Order, at Defendants' counsel's offices, and bearing his own travel costs. If Plaintiff does not comply with this Order, the Court will consider terminating sanctions, upon Defendants' motion.
IV. CONCLUSION
The Court GRANTS Defendants' Motion for fees against Plaintiff and his counsel in the amount of $2,722.10, to be paid within 30 days. The Court ORDERS Plaintiff to appear for a deposition at Defendants' counsel's offices within 10 days of the date of this Order, and to bear the costs associated with traveling there.
IT IS SO ORDERED.