Opinion
2:05-CV-1600-DAD-DMC-P
05-15-2023
THOMAS CLINTON, Plaintiff, v. COOPER, et al., Defendants.
ORDER
DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE
Plaintiff, who is proceeding with retained counsel, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is Defendants' motion, ECF No. 682, to compel Plaintiff's attendance at a deposition noticed for May 19, 2023. The matter has been noticed for hearing before the undersigned in Redding, California, on May 24, 2023, at 10:00 a.m.
Defendants state in their notice of motion that Plaintiff has unilaterally cancelled and failed to appear at prior noticed depositions. See ECF No. 682, pg. 1. Defendants have now noticed Plaintiff's deposition for May 19, 2023, and appear to have filed the instant motion to compel anticipating that Plaintiff will not appear. Defendants seek an order under Federal Rule of Civil Procedure 37. See Id.
The Court finds that Defendants' motion is premature under Rule 37. Rule 37(a)(3)(B)(i) permits a motion to compel when “a deponent fails to answer a question. . .” Here, Defendants did not file any motions related to Plaintiff's failure to appear at previously noticed depositions and Plaintiff has not yet failed to answer a question at the deposition noticed for May 19, 2023. Rule 37(d)(a)(A)(i) permits the Court to order sanctions against a party who fails to appear at a properly noticed deposition. Again, this rule does not afford Defendants relief because the May 19, 2023, deposition has not occurred and, for this reason, it cannot be said that Plaintiff has failed to appear at that deposition. Defendants' Rule 37 motion is not ripe until such time as Plaintiff fails to attend or answer questions at the deposition noticed for May 19, 2023.
Accordingly, IT IS HEREBY ORDERED as follows:
1. Defendants' motion to compel, ECF No. 682, is denied as premature.
2. The hearing set before the undersigned on May 24, 2023, at 10:00 a.m., in Redding, California, is vacated.
3. The Clerk of the Court is directed to terminate ECF No. 682 as a pending motion.