Opinion
Civil No. 02-3054-CO.
May 28, 2004
ORDER AND FINDINGS AND RECOMMENDATION
In this civil rights action, plaintiffs seek damages for alleged personal injury and wrongful death. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1343. Before the court are defendants' motions for sanctions pursuant to Federal Rules of Civil Procedure 37(b)(2) and (d) (#55) and plaintiffs' motion for protective order (#59)
I. LEGAL STANDARDS
Pursuant to Rule 37(d) of the Federal Rules of Civil Procedure, a party may seek sanctions against a party for failing to attend his or her deposition. Rule 37(d) provides in pertinent part:
If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, . . ., the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and ©) of subdivision (b)(2) of this rule. . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Rule 37(b)(2) provides in pertinent part:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;
©) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . .
The purpose of Rule 37 sanctions is to both "`penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.'" Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980) (quoting Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976)); United States v. Sumitomo Marine Fire Ins. Co., 617 F.2d 1365, 1368 (9th Cir. 1980). Before exercising its discretion to impose the drastic sanction of dismissal, the court must weigh five factors:
(1) the public's interest in expeditious resolution of the litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of lesser sanctions.Henry v. Gill Indus, Inc., 983 F.2d 943, 947 (9th Cir. 1993). The first two factors support sanctions while the fourth factor cuts against a dismissal sanction. Id.; Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990); Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1413 (9th Cir. 1990). Thus, the key factors for the court to consider are prejudice and the availability of lesser sanctions. Henry, 983 F.2d at 947. "A defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Adriana Int'l. Corp., 913 F.2d at 1412.
The availability of lesser sanctions requires the district court to (1) consider the feasibility of lesser sanctions and explain why alternative sanctions would not be appropriate; (2) implement alternative sanctions before ordering dismissal; and (3) warn the disobedient party of the possibility of dismissal "before actually ordering it." Hyde Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994). An "`explicit discussion of alternatives is unnecessary if the district court actually tries alternatives before employing the ultimate sanction of dismissal.'" Id. (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987)). Similarly, an explicit warning is not always required where discovery abuse has been flagrant.United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 605 (9th Cir. 1988). In other circumstances, however, the failure to warn could "place the district court's order in serious jeopardy." Id.
In addition to weighing the five factors, the court must also determine that the noncompliance was due to willfulness, bad faith, or fault of the party. Henry, 983 F.2d at 946; Hyde Drath, 24 F.3d at 1167. "`[D]isobedient conduct not shown to be outside the control of the litigant' is all that is required to demonstrate willfulness, bad faith, or fault." Id. (quoting Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985).
In lieu of, or in addition to, dismissal, the court "shall require" the noncomplying party to pay reasonable expenses, including attorney's fees "caused by the failure" to comply unless the court finds that the failure was "substantially justified or that other circumstances make an award unjust." Fed.R.Civ.P. 37(d); see Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983); Hyde Drath, 24 F.3d at 1171. An award of reasonable expenses, including attorney's fees, is not available unless the expenses are caused by the failure to comply. See Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385-86 (9th Cir. 1988). Once fees are found to be caused by noncompliance, the burden of showing substantial justification or special circumstances for the failure to comply is on the party against whom an award is sought. Hyde Drath, 24 F.3d at 1171.
Willfulness is not a necessary element for the imposition of expenses and attorney's fees. David v. Hooker, Ltd., 560 F.2d 412, 418 (9th Cir. 1977). Counsel seeking an award of fees must show that the request is reasonable. Toth, 862 F.2d at 1386. An award of attorney's fees may be made based upon the affidavits of counsel so long as those affidavits are detailed enough to allow the court to consider all the factors necessary to set the fee. Henry, 983 F.2d at 946. The affidavits must provide sufficient information to enable the court to clearly establish for the record that the fees demanded are caused by the noncomplying conduct and that they are reasonable. Toth, 862 F.2d at 1386. Counsel's affidavits should include the nature of the services rendered, the prevailing rate, and the hours of attorney time. Henry, 983 F.2d at 946.
Rule 26(c)(2) of the Federal Rules of Civil Procedure provides that:
Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; . . .
A majority of jurisdictions hold that in order to further the interests of justice, district courts have great discretion in designating the location of taking a deposition. Buzzeo v. Bd. of Educ., Hempstead, 178 F.R.D. 390, 392 (D.C.N.Y. 1998);Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979);Gen. Leasing Co. v. Lawrence Photo-Graphic Supply, Inc., 84 F.R.D. 130 (W.D. Mo. 1979); Fin. Gen. Bankshares, Inc. v. Lance, 80 F.R.D. 22, 23 (D.D.C. 1978); Thompson v. Sun Oil Co., 523 F.2d 647, 648 (8th Cir. 1975); Connell v. Biltmore Sec. Life Ins. Co., 41 F.R.D. 136, 137 (D.S.C. 1966).
II. DISCUSSION
Defendants seek an order dismissing this action with prejudice on the ground that plaintiffs Lillian E. Collins and Robert J. Collins failed to appear at their noticed depositions. Defendants also seek reasonable attorney's fees and expenses. Plaintiffs oppose defendants' motion and move for a protective order allowing the deposition of Lillian Collins by telephone or, alternatively, by live video conferencing. Defendants oppose deposition by telephone.
The record shows that the parties agreed to depositions the week of January 19, 2004; defendants noticed plaintiffs Lillian Collins' and Robert Collins'depositions for January 20th, in Medford, Oregon, to commence at 9:00 and 1:30, respectively; that defendants' counsel, Ms. Browning, traveled from Portland, Oregon, to Medford, Oregon, on January 19th; that an assistant in plaintiffs' counsel's office called Ms. Browning's assistant to confirm the deposition scheduling; and that plaintiffs' counsel, Mr. Glass, called defendants' office at approximately 4:30 p.m. on January 19th to inform counsel that plaintiffs would not be appearing for their depositions. In telephone conversations between Ms. Browning and Mr. Glass that evening, Mr. Glass indicated that plaintiff Lillian Collins, who lives in Florida, could not afford to travel to Oregon, but would be available for deposition by telephone on January 21st, which was apparently unacceptable to Ms. Browning. Mr. Glass told Ms. Browning that he had not had any contact with plaintiff Robert Collins and had no current address or phone number for him, and offered to dismiss plaintiff Robert Collins. Ms. Browning informed Mr. Glass that defendants intended to seek sanctions including dismissal of the action and attorney's fees and costs. Ms. Browning canceled the remaining depositions of decedent's brother, Richard Collins, scheduled for January 21st at 1:30, and of defendants, scheduled for January 22nd. Ms. Browning made a record of plaintiffs' non-appearances on January 20th.
Defendants contend that plaintiffs were required to appear for their depositions in the forum they selected; they failed to properly extinguish their duty to appear by failing to file motions for protective order or to adjourn the depositions; the explanations are not legally viable reasons to negate their duty to appear; and their failures to appear can be characterized as willful. Plaintiffs contend that their inability to appear was not willful; defendants violated Rule 26(d) by refusing to proceed with the scheduled depositions, thereby delaying discovery, and by seeking sanctions without first making a good faith effort to confer and seek a reasonable resolution of the deposition problem. Plaintiffs contend that other circumstances make an award of expenses unjust. In support of their motion for protective order as to plaintiff Lillian Collins, plaintiffs contend that she is of limited financial means and unable to travel from Florida to Medford, Oregon; and that she has no direct knowledge of the circumstances of decedent's death and her testimony is of limited scope. In response to plaintiffs' motion for protective order, defendants contend that inconvenience or expense does not constitute extreme hardship; any burden of appearing in Oregon is justified since plaintiffs seek in excess of $1.5 million in damages; and a telephone deposition would not be adequate discovery, and defendants would be prejudiced because counsel would not be able to observe plaintiff Lillian Collins' demeanor or reaction to questions and would be unable to ascertain if anyone was listening or coaching her. Plaintiffs reply that plaintiff Lillian Collins can be effectively deposed via live video-conferencing; and that defendants are attempting to utilize the discovery procedure to avoid trying the case on its merits. Plaintiff Lillian Collins' unsigned affidavit was included in their reply. Subsequent to the hearing on these motions, plaintiffs filed the signed affidavit of plaintiff Lillian Collins.
The court must consider five factors in determining whether it should dismiss a case under Federal Rules of Civil Procedure 37(d). Henry, 983 F.2d at 947. Of the five factors which the court must consider, prejudice to defendant and the availability of lesser sanctions are the key factors to consider. Id.;Adriana Int'l Corp., 913 F.2d at 1412; Wanderer, 910 F.2d at 656.
The behavior of plaintiff prejudices defendant if it impairs the ability of defendant to go to trial, or threatens to interfere with the rightful decision of the case. Hyde Drath 24 F.3d at 1166. In Hyde Drath, the court found that nearly two-and-one-half years of "`repeated failure of plaintiffs to appear at scheduled depositions compounded by their continuing refusal to comply with court ordered production of documents constituted an interference with the rightful decision of the case.'" Id. (quoting Adriana Int'l Corp., 913 F.2d at 1412). Similarly, in Henry, 983 F.2d at 947, the court found that plaintiff had prejudiced defendant's ability to mount a defense. In Henry, the source of the prejudice was the fact that during delays of over two years, caused by plaintiff, a defendant and key witness died. Id. In Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 266-70 (9th Cir. 1964), the trial court entered default judgment against defendant after he repeatedly failed to appear for his court ordered deposition. The Ninth Circuit affirmed, noting that the record showed a "pattern of evasion and obstruction, indeed open defiance, with which [defendant] and his counsel met every effort of [plaintiffs] and the trial court to secure his deposition." Id. at 269.
In this case, defendants claim no prejudice by plaintiffs' failure to appear for their depositions. Defendants do not argue that any witness has died or been rendered unable to assist in the preparation of their case, or that any other event has prejudiced preparation of their defense. And unlike the cases ofHyde Drath or Henry, Jr., there has been no real delay caused by plaintiffs' failure to appear; defendants filed their motion within two weeks of the non-appearances. The court finds that defendants fail to establish prejudice as contemplated by case law.
Another key factor that the court must consider is the availability of lesser sanctions. Henry, 983 F.2d at 947. This factor requires the district court to implement lesser sanctions and warn plaintiff of the possibility of dismissal before ordering dismissal. Hyde Drath, 24 F.3d at 1167. Here, lesser sanctions have not been ordered by the court and are available to compel plaintiff Lillian Collin's appearance for the taking of her deposition. Defendants do not request any lesser sanction but seek dismissal of the case as to all plaintiffs. Moreover, plaintiff Lillian Collins has not been warned by the court that her failure to comply with discovery requests including the taking of her deposition might result in dismissal of her case. While an explicit warning is not always required where discovery abuse has been flagrant, Kahaluu Constr. Co., 857 F.2d at 605, the court is not satisfied that such abuse is evident in the record to warrant dismissal of plaintiff's case.
Of the remaining three factors the court must consider, two support sanctions while one weighs against dismissal. Sumitomo Marine Fire Ins. Co., 617 F.2d at 1368. In weighing all the factors, the court finds that, in the circumstances, plaintiff Robert Collins' and his claims should be dismissed, and dismissal of plaintiff Lillian Collins would not be appropriate. Defendants' motion for sanctions in the form of dismissal should be granted as to plaintiff Robert Collins and denied as to plaintiff Lillian Collins.
Plaintiffs seek to have plaintiff Lillian Collins deposed by live video-conferencing so that she does not have to travel from Florida to Oregon for her deposition. In the circumstances shown in the record, the court finds that plaintiff Lillian Collins' deposition should take place in Oregon, her choice of forum. Plaintiff Lillian Collins' deposition should be reset to a date selected by defendants to take place in Portland, Oregon, at defendants' counsel's office, within 45 days of the date of the court's order on the instant motions. Plaintiff Lillian Collins should be informed that, should she fail or refuse to attend the deposition scheduled by defendants, and ordered by the court, the undersigned will recommend dismissal of her complaint with prejudice.
Defendants also request that they be awarded their reasonable attorney's fees and costs incurred in traveling from Portland to Medford, Oregon, and for the expenses of filing the motion. Under Federal Rules of Civil Procedure 37(d), the court is authorized to order a party to pay reasonable expenses, including attorney's fees, caused by a failure to attend a noticed deposition. In the circumstances, the court finds that economic sanctions against plaintiffs' counsel and plaintiff Lillian Collins are warranted and justified by the record before the court. Counsel for defendants shall submit documentation by affidavit of expenses incurred in this matter.
III. ORDER
It is ordered that defendants' request for reasonable attorneys fees and expenses, included in their motion for sanctions (#55), is granted.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that defendants' motion for sanctions(#55) in the form of dismissal be granted as to plaintiff Robert Collins and be denied as to plaintiff Lillian Collins; that plaintiffs' motion for protective order (#59) be denied; and that plaintiff Lillian Collins' deposition be reset to a date selected by defendants to take place in Portland, Oregon, at defendants' counsel's office, within 45 days of the court's order on the instant motions; and that plaintiff Lillian Collins be warned that, if she fails to attend her deposition as reset, the court will consider dismissing her complaint with prejudice. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.