Opinion
2:14-cv-1347-GMN-EJY
05-09-2024
THOMAS R. LAYTON, an individual, Plaintiff, v. GREEN VALLEY VILLAGE COMMUNITY ASSOCIATION, dba GREEN VALLEY VILLAGE HOA, et al.,, Defendants.
ORDER
ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE
On May 8, 2024, the Court held a hearing in which it addressed four motions primarily pertaining to depositions Plaintiff, who is pro se, has expressed interest in taking including, but not limited to the Fed.R.Civ.P. 30(b)(6) depositions of defendant business entities. Prior to the May 8th hearing, the Court issued two orders in an effort to resolve issues providing specific directions to the parties primarily for purposes of helping pro se Plaintiff. At the hearing on May 8, 2024, the Court spent considerable time speaking with Plaintiff, explaining Fed.R.Civ.P. 30(b)(6), as well as how the depositions of an individual witness would proceed. The Court discussed the differences between percipient witnesses and Rule 30(b)(6) witnesses. The Court explained to Plaintiff why members of the public could not attend the depositions he ultimately stated he wants to take, why they are not parties to this action, and why they lack standing. The Court also discussed a production of documents Plaintiff propounded, that Defendants could not be ordered to produce documents they do not have, and how to proceed with a motion to compel after meeting and conferring with defense counsel.
The Court spent considerable time with the parties finding a mutually convenient date for the depositions Plaintiff seeks of an individual witness, Joe Yakubik, who will also appear as the Rule 30(b)(6) deponent for Green Valley Village Community Association. The Court explained that Green Valley Village is entitled to choose who will represent the entity at deposition. The Court explained that it recognizes Plaintiff's frustration with Mr. Yakubik, but that the deposition must be cordial at all times. The Court confirmed Plaintiff was not proceeding with the Rule 30(b)(6) deposition of Assured Real Estate Inc. A date was selected for the combined individual and Rule 30(b)(6) deposition of Mr. Yakubik, with the following day reserved in case Plaintiff could not complete the deposition in seven hours. The start time and end time of the deposition (with some leeway) was discussed as well as the location of the deposition. Plaintiff stated on the record and confirmed that he would get the topics for the Fed.R.Civ.P. 30(b)(6) deposition of Green Valley Village to defense counsel within 24 hours. He did not do so.
On the morning of May 9, 2024, the Court received a call from counsel for Defendants with Plaintiff initially connected on the call. However, Plaintiff appeared to have hang up immediately upon learning Judge's chambers was also connected to the call. The Court then set an emergency telephonic hearing for 1 p.m. on May 9, 2024. A minute order was issued at approximately 10:20 a.m. on the morning of May 9. The Court instructed defense counsel to email and telephone Plaintiff to advise him of the hearing. Plaintiff was also contacted by the Court's Judicial Executive Assistant (“Assistant”). When Plaintiff was reached, he stated he was not at home. The Court's Assistant explained the hearing was by telephone. Plaintiff stated he would not be available, but gave no reason why.
The Court proceeded with the telephonic hearing at 1 p.m. giving Plaintiff the opportunity to reconsider his availability and appear telephonically. Plaintiff did not call into the MeetMe line at 1 p.m. The Court telephoned Plaintiff, but he did not answer the call.
The Court then heard from counsel for Defendants. The Court inquired into the reason for the emergency call on the morning of May 9. The Court learned that Defendants attempted to move the deposition set for May 23, with May 24, 2024 reserved for additional questioning if needed, to May 22, reserving May 23, 2024 for additional questioning. An email exchange ensued that defense counsel found lacked some clarity regarding Plaintiff's availability. However, Plaintiff called defense counsel at which time defense counsel hoped the matter would be resolved as he had already stated in email that the witness, who would appear individually and as under Rule 30(b)(6), would be available on May 23 and 24, 2024-that is, that the date originally agreed upon.
Unfortunately, during the call Plaintiff made statements that concerned defense counsel. Plaintiff referenced knowing and potentially hiring a lawyer who was very recently involved in the shooting and killing of a local attorney and his wife at a deposition in Las Vegas. When asked what Plaintiff meant by this reference, Plaintiff told defense counsel that defense counsel could interpret Plaintiff's statements however he wanted. Plaintiff is warned that he may not use his pro se status to engage in or excuse improper conduct. Plaintiff is advised that threats of any kind against Defendants, witnesses, or counsel are not tolerated by the Court. Threats of any kind made going forward will result in sanctions up to an potentially including case dispositive sanctions. Murphy v. Wilhelm, Case No. 3:19-CV-01733-AC, 2021 WL 799307, at *2-4 (D. Or. Mar. 2, 2021) (ordering defendant not to communicate directly with any party in the case that is represented by counsel where defendant's emails to such parties were “accusatory, sometimes threatening, and always couched in an inappropriate and unprofessional tone).
Based on the above and out of an abundance of caution, IT IS HEREBY ORDERED that, until further order of the Court, all future contact between Plaintiff and counsel for Defendants as well as between Plaintiff and Mr. Yakubik must be virtual-either by teleconference or video conference.
IT IS FURTHER ORDERED that if Plaintiff seeks to proceed with the Rule 30(b)(6) deposition of Green Valley Village Community Association he must provide the list of topics to defense counsel by email no later than 5 p.m. Pacific Daylight Time on May 13, 2024. If Plaintiff fails to provide defense counsel the topics for the Rule 30(b)(6) deposition by 5 p.m. PDT on May 13, 2024, the 30(b)(6) deposition will not proceed on May 23, 2024. Only the individual deposition of Mr. Yakubik will go forward on that date.
IT IS FURTHER ORDERED that the deposition of Mr. Yakubik set for May 23 and, if needed, continuing on May 24, 2024, must be taken by Zoom. This means Plaintiff may be in a location of his choice either with the court reporter at the same location or with the court reporter also appearing through Zoom. Mr. Yakubik and defense counsel are to be in a separate location of their choosing from which they will appear through Zoom.
IT IS FURTHER ORDERED that Plaintiff must arrange for the video deposition of Mr. Yakubik in his individual capacity and, potentially, as the Rule 30(b)(6) witness for Green Valley Village. This means Plaintiff must arrange a Zoom meeting on May 23, 2024 commencing no later than 9 a.m. and ending no later than 6:15 p.m. that same day. Plaintiff must send an invite for the video deposition to counsel for Defendants and to the court reporter if the court reporter is to appear by Zoom. Plaintiff must email defense counsel all exhibits he may use at the deposition no later than 8:30 a.m. on May 23, 2024. If the court reporter appears by Zoom, Plaintiff must also email the court reporter all exhibits he may use no later than 8:30 a.m. on May 23, 2024.
IT IS FURTHER ORDERED that the parties are to appear via Zoom for a hearing at 1 p.m. on May 21, 2024. The hearing will address, inter alia, Plaintiff's May 9, 2024 conversation with defense counsel.
IT IS FURTHER ORDERED that the parties must contact Elvia Garcia, the Courtroom Deputy for the undersigned Magistrate Judge, by 12:00 p.m. on May 17, 2024, at ElviaGarcia@nvd.uscourts.gov, and provide their email addresses. Ms. Garcia will email participants with the Zoom link.