Opinion
CASE NO. 1:08-cv-00860-SMS PC.
October 5, 2009
ORDER GRANTING DEFENDANT'S MOTION TO COMPEL DEPOSITION AND FOR SANCTIONS IN THE AMOUNT OF $1,110.95 (Doc. 19)
Order on Defendant's Motion to Compel and for Sanctions
I. Introduction
Plaintiff Steve C. Moore is a former state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint filed June 19, 2008, against Defendant Heisey for use of excessive force, in violation of the Eighth Amendment of the United States Constitution.
Pursuant to the scheduling order filed on June 5, 2009, the deadline for the completion of discovery is February 5, 2010. Pending before the Court is Defendant's motion to compel Plaintiff's deposition and for sanctions, filed August 4, 2009. Plaintiff did not file a response.
II. Discussion
Defendant noticed Plaintiff's deposition for July 20, 2009, at 10:00 a.m. in Sacramento, California. (Doc. 19-4, Ex. A.) However, Plaintiff did not appear for his deposition, and did not contact Defendant's counsel before or after the deposition. (Doc. 19-3, Lee Dec., ¶¶ 2, 3.) Defendant seeks an order compelling Plaintiff's deposition and monetary sanctions in the amount of $1,110.95, which represents the costs incurred in preparing for the deposition, attempting to take the deposition, compensating the court reporter, and preparing the motion to compel. (Lee Dec., ¶ 4.)
The deposition notice was served on June 8, 2009, and gave reasonable notice of the deposition set for July 20, 2009. Fed.R.Civ.P. 30(b)(1). Plaintiff's failure to attend his deposition subjects him to sanctions, including reasonable expenses caused by his failure to appear "unless the failure to appear was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(d)(3). Given that Plaintiff did not respond to Defendant's motion, no attempt to substantially justify the failure to appear has been made, and the motion to compel and for sanctions shall be granted.
III. Order
Based on the foregoing, it is HEREBY ORDERED that:
1. Defendant's motion to compel Plaintiff's deposition and for sanctions in the amount of $1,110.95, filed August 4, 2009, is GRANTED;
2. Plaintiff is ordered to appear for his deposition, should Defendant notice one, and the failure to appear will subject Plaintiff to additional sanctions, including dismissal of this action; and
3. Plaintiff has ninety (90) days to pay the Attorney General's Office $1,110.95.
IT IS SO ORDERED.