Opinion
C.A. No. 01-467 S
March 6, 2003
Report and Recommendation
Currently before the Court are the motions of defendant Ashbel T. Wall to dismiss and for attorney's fees pursuant to Fed.R.Civ.P. 30 and 37. Anthony Meo and Ronald Bourdeau, the pro se plaintiffs, incarcerated at the Adult Correctional Institution, have objected to the motions.
The pro se plaintiffs have filed a "Motion to Oppose Attorney Fees" and a "Motion to Strike Defendant's Motion to Dismiss." The Court will treat these documents as objections.
These matters have been referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend that defendant's motion to dismiss and defendant's motion for attorney's fees be denied.
Background
Plaintiffs Ronald Bourdeau and Anthony Meo, confined at the Adult Correctional Institutions, Cranston, Rhode Island, filed a Complaint pursuant to 42 U.S.C. § 1983 alleging a violation of their Eighth and Fourteenth amendment rights. In their Complaint, Plaintiffs contend that they are/were exposed to unnecessary amounts of tobacco smoke, resulting in injury, while incarcerated. See Helling v. McKinney, 509 U.S. 25 (1999). Plaintiffs name as a defendant Ashbel T. Wall, Director of the Rhode Island Department of Corrections, who is responsible for the operation of the facility.
Following the filing of the Complaint, discovery commenced and the parties filed motions relating thereto. On April 8, 2002, discovery closed. After the closure date, defendant filed numerous "Notices" to depose the pro se plaintiffs at the ACI. Defendant did not seek an extension of time in which to conduct these depositions.
On December 19, 2002, the defendant finally, although belatedly, attempted to take the deposition of the pro se plaintiffs. When the deposition commenced, the pro se plaintiffs objected to the deposition, invoking the attorney client privilege as the basis. Plaintiffs also objected to the depositions since they allege that they did not receive notice. See Fed.R.Civ.P. 30(b). The depositions were adjourned, and the defendant moved to dismiss and for attorney's fees, pursuant to Rules 30 and 37 of the Federal Rules of Civil Procedure. Plaintiffs have filed objections thereto.
Discussion
Rule 37 of the Federal Rules of Civil Procedure provides, in relevant part:
If a party . . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others, the following:
. . .
(C) An order striking out the 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. . . .
Fed.R.Civ.P. 37(b)(2)(C). The rule's language requires two things as a condition precedent to engaging the rule's sanction machinery: a court order must be in effect, and then must be violated, before the enumerated sanctions can be imposed. R.W. International Corp., v. Welch Foods, Inc., 937 F.2d 11, 14 (1st Cir. 1991). "Rule 37(b)(2)'s plain language means exactly what it says." Id. (collecting cases).
Here, defendant complains that the pro se plaintiffs' refusal to answer questions during a deposition requires dismissal of this action. However, should a deponent refuse to answer questions during a deposition, an examiner has remedies at hand. See Fed.R.Civ.P. 37(a). When "a deponent fails to answer questions propounded . . ., the discovering party may move for an order compelling an answer. . . ." See Fed.R.Civ.P. 37(a)(2)(B); See also R.W. International Corp., 937 F.2d at 14. If the court thereafter finds that the refusal to answer was not "substantially justified," the examiner will receive the amount of the "reasonable expenses incurred in obtaining the order, including reasonable attorney's fees." See Fed.R.Civ.P. 37(a)(4). If the Court orders the deponent to answer, and that order is disobeyed, Rule 37(b)(2) then comes into play, authorizing the court to imposes sanctions, including, possibly, dismissal.
Here, defendant fails to satisfy the first condition precedent that a court order be in effect. In fact, plaintiff has failed to identify any court order on which he bases this instant motion. Instead of following the protocol set forth in Rule 37, that is, adjourning the deposition and seeking a court order compelling the plaintiffs to comply, defendant attempted to bypass Rule 37(a) and sought immediate dismissal of the suit. This he cannot do. Accordingly, a dismissal is inappropriate here.
To the extent that the defendant seeks attorney's fees for the depositions, such an award cannot be sustained. First, as discussed above, defendant did not follow the proper protocol for such an award. No bases exists, under Fed.R.Civ.P. 30 or 37, for maintaining such an award.
Second, defendant's attempt to depose the pro se plaintiffs was untimely. Discovery closed in this case on April 8, 2002. See Pretrial Order, entered on February 7, 2002. The pretrial order provides, in relevant part: "On or before [April 8, 2002], all . . . depositions and discovery must be completed. Id. (emphasis added). Here, defendant attempted to depose the plaintiffs on December 19, 2002, well beyond the discovery closure date. This court should not countenance violating a court order with an award of attorney's fees.
Conclusion
Accordingly, for the reasons state above, I recommend that the defendant's motion to dismiss and defendant's motion for attorney's fees be denied. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).