Ballard Marine Construction LLC v. Javeler Marine Services LLC

• Court: District Court, W.D. Washington
• Decided: June 21, 2023
• Docket: 3:21-cv-05140
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA 9 BALLARD MARINE CONSTRUCTION, CASE NO. C21-5140-JCC LLC, 10 ORDER 11 Plaintiff, v. 12 JAVELER MARINE SERVICES, LLC, 13 Defendant. 14 15 This matter comes before the Court on Plaintiff’s motion for discovery sanctions (Dkt. 16 No. 25). Having thoroughly considered the parties’ briefing and the relevant record, the Court 17 DENIES the motion for the reasons explained herein. 18 The Court briefly summarized the factual background of this case in a prior order. (See 19 Dkt. No. 28.) It will not repeat that information here. Plaintiff now asks the Court to sanction 20 Defendant for failing to produce a deponent, following its notice of a Rule 30(b)(6) deposition. 21 (Dkt. No. 25 at 1.) Specifically, Plaintiff seeks the imposition of at least one of the sanctions 22 available for the willful disobedience of a discovery order. (See Dkt. No. 25 at 6–7 (citing Fed. 23 R. Civ. P. 37(b)(2)(A)(i)–(vi), (d)(1)(A)).) Alternatively, Plaintiff asks the Court to order 24 Defendant to pay attorney fees and costs associated with the instant motion. (See Dkt. No. 25 at 25 11.) 26 1 If a party fails to attend a Rule 30(b)(6) deposition, after being served with proper notice, 2 the Court may impose sanctions. See Fed. R. Civ. P. 37(d)(3) (incorporating sanctions described 3 in Rule 37(b)(2)(A)(i)–(vi)). This ranges from barring evidence supporting claims or defenses, to 4 rendering default judgment against the offending party. Id. A terminal sanction, though, requires 5 a showing that the violation was due to “willfulness, fault, or bad faith.” Leon v. IDX Sys. Corp., 6 464 F.3d 951, 958 (9th Cir. 2006). And the Court must first consider “less severe alternatives.” 7 Id.1 8 Here, the Court finds that none of the Rule 37(b)(2) sanctions are appropriate. Most 9 importantly, Plaintiff fails to establish that Defendant, in fact, did not attend a scheduled 10 deposition. What Plaintiff has established is that Plaintiff cancelled the deposition after 11 Defendant was unresponsive in scheduling it. (See Dkt. No. 26 at 17 (e-mail exchange where 12 Plaintiff’s counsel noted that the deposition would need to be rescheduled after Defendant 13 informed Plaintiff that the noted date did not work but then failed to provide an alternative 14 date).) While this suggests poor communication and case management efforts on the part of 15 defense counsel, it has not yet risen to the level of sanctionable conduct.2 Moreover, in light of 16 the parties’ recent stipulation continuing the trial date and extending the discovery cut-off, (see 17 Dkt. No. 33), which the Court adopted, (see Dkt. No. 34), the Court sees no prejudice to Plaintiff 18 from its inability to depose Defendant’s Rule 30(b)(6) representative, at least not yet. 19 Nor does the Court find attorney fees warranted. At the time that Plaintiff elected to move 20 for sanctions, Defendant had already moved to extend the discovery cut-off (a motion Plaintiff 21

22 1 The Court considers the following factors in imposing a terminal sanction: “‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; 23 (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 less drastic sanctions.’” Ski Lifts, Inc. v. 24 Schaeffer Mfg. Co., 2020 WL 1492676, slip op. at 6 (W.D. Wash. 2020) (quoting Leon, 464 F.3d 25 at 958 (9th Cir. 2006)). 2 Although counsel should be cautioned that the Court does not look fondly on efforts to 26 game the discovery process. 1 inexplicably opposed), and it was pending a decision from the Court. (See Dkt. Nos. 21, 22.) So 2 awarding fees for the instant motion would seem unjust. See Fed. R. Civ. P. 37(d)(3). 3 For the foregoing reasons, Plaintiff’s motion for sanctions (Dkt. No. 25) is DENIED. 4 5 DATED this 21st day of June 2023. A 6 7 8 John C. Coughenour 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26