Opinion
No. 3:04CV00303-WRW.
September 11, 2006
ORDER
Pending is Defendant's Motion for Sanctions (Doc. No. 71). Plaintiffs have responded (Doc. No. 73). Specifically, Defendant asks that the claims of Plaintiffs' LaKresha Johnson, Kim Whitted, and Treece Speed be dismissed under Fed.R.Civ.P. 37(d) for their failure to appear for depositions. Should dismissal be denied, Defendant asks that the above-named Plaintiffs be ordered to appear for deposition, and ordered to pay the fees and costs associated with the missed depositions.
Plaintiff LaKresha Johnson was noticed but failed to appear for deposition on December 21, 2005. The deposition was rescheduled for July 28, 2006. Plaintiffs' counsel confirmed the date and time with Ms. Johnson on the evening of July 27, 2006. Nevertheless, Ms. Johnson did not appear. Ms. Johnson's deposition was rescheduled for a third time on August 22, 2006. Ms. Johnson again failed to appear.
Plaintiff Kim Whitted was noticed but failed to appear for deposition on February 7, 2006. Defendant rescheduled the deposition for August 23, 2006, and informed Plaintiff of the change by letter sent August 2, 2006. Ms. Whitted notified her counsel the afternoon before the deposition that she may not appear but did not offer an explanation. Plaintiffs' counsel returned her call and left a message on Ms. Whitted's answering machine, informing her that her failure to appear, unless due to a medical emergency, could result in a dismissal of her case.
Doc. No. 72-3, p. 14.
Plaintiff Treece Speed was noticed but failed to appear for deposition on February 2, 2006. Defendant rescheduled the deposition for August 21, 2006, and informed Plaintiff of the change by letter sent July 28, 2006. Ms. Speed failed to appear. According to Plaintiffs' counsel Ms. Speed was absent due to an illness that required an emergency room visit on August 20, 2006. The deposition was rescheduled for August 22, 2006 and then again for August 23, 2006. Ms. Speed did not appear at any of the scheduled depositions.
Citing Fed.R.Civ.P. 37(d), the Eighth Circuit has held that a district court has wide latitude in imposing sanctions for failure to comply with discovery, and has upheld a dismissal for a failure to appear for a deposition. No motion to compel is required before dismissal under Rule 37(d).
Farnsworth v. City of Kansas City, 863 F.2d 33, 34 (8th Cir. 1988) ( per curiam), cert. denied, 493 U.S. 820 (1989).
Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994).
Id. (citing Halas v. Consumer Servs. Inc., 16 F.3d 161, 164 (7th Cir. 1994)).
For good cause shown, it seems appropriate to DISMISS Plaintiffs Johnson and Whitted for their continued failure to appear for scheduled depositions. Plaintiff Speed, however, was absent due to an on-going illness that warranted emergency room treatment. Accordingly, Ms. Speed is ordered to appear for a deposition at a date agreed upon by all counsel. If Ms. Speed fails to appear without good cause, her claims will be DISMISSED.
Defendant's motion for costs and fees associated with the missed depositions, as well as its motion for attorneys' fees associated with the Motion for Sanctions, is DENIED.
IT IS SO ORDERED.