1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HOUSTON, No. 2:20-cv-1051 KJM DB P 12 Plaintiff, 13 v. ORDER 14 NGAI, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding in forma pauperis with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Plaintiff claims that defendants failed to adequately respond to his mental 19 health issues in violation of the Eighth Amendment. Presently before the court is defendants’ 20 motion to compel and for sanctions. (ECF No. 34.)1 For the reasons set forth below, the court 21 will grant the motion to compel, deny the request to impose sanctions, and direct defendants to 22 reschedule and re-notice the deposition. 23 //// 24 //// 25
26 1 By order dated February 7, 2022, defendants were directed to reserve their motion to compel and for sanctions on plaintiff. (ECF No. 40.) However, it appears in addition to sending the 27 motion to plaintiff, the motion was also refiled on the docket. Review of the filings indicate the two motions are identical save for the additional proofs of service. (ECF No. 41 at 4, 7.) The 28 court will treat the refiled motion (ECF No. 41), as a duplicate filing. 1 DEFENDANTS’ MOTION 2 Defendants move for an order compelling plaintiff’s attendance at a deposition and 3 requesting the court impose monetary, or alternatively, terminating sanctions. (ECF No. 34.) 4 Defendants state they made multiple attempts to contact plaintiff to schedule a deposition. 5 However, plaintiff never responded and failed to attend the duly noticed deposition. (ECF No. 34 6 at 1.) 7 I. Background 8 Plaintiff filed a notice of change of address dated April 14, 2021, stating he had been 9 released from custody. (ECF No. 26.) Plaintiff’s notice of change of address did not include a 10 telephone number or email address. 11 On July 29, 2021, counsel for defendants wrote a letter to plaintiff stating that he wished 12 to schedule plaintiff’s deposition. (ECF No. 34 at 2.) The letter was mailed to the address 13 plaintiff provided. Defendants did not receive a response. 14 On September 10, 2021, defendants mailed a deposition notice to the address stating the 15 deposition was set for September 24, 2021, at 10:00 a.m. (Id.) The notice also advised plaintiff 16 the deposition was set to take place by videoconference in light of the ongoing COVID-19 17 pandemic. Defendants did not receive a response and the notice was not returned as 18 undeliverable. (Id.) On September 14, 2021, counsel for defendants also sent plaintiff 19 information on how to connect to the videoconference. Plaintiff did not respond to this letter, and 20 it was not returned as undeliverable. (Id. at 2-3.) 21 Defense counsel along with a court reporter attended the September 24, 2021, deposition. 22 (Id. at 3.) They waited until approximately 10:35 a.m., but plaintiff did not appear. Thereafter, 23 defendants filed in the instant motion to compel and request for sanctions. 24 II. Argument 25 Defendants state Federal Rule of Civil Procedure 30 permits the use of depositions to 26 conduct discovery. (ECF No. 34 at 3.) Defendants further argue that the notice was timely 27 served, the notice was sent plaintiff’s address of record, they made several attempts to meet and 28 //// 1 confer with plaintiff to schedule the deposition, and none of the correspondence was returned as 2 undeliverable. (Id. at 3-4.) 3 Defendants claim plaintiff’s failure to appear for the properly noticed deposition was 4 without justification. Thus, they allege, they are entitled to an order compelling plaintiff to attend 5 a deposition and monetary sanctions for the costs associated with the initial unsuccessful attempt 6 to depose plaintiff and the necessity of bringing the motion to compel. (Id. at 4.) Alternatively, 7 defendants argue the court should impose terminating sanctions because plaintiff is unlikely to be 8 able to pay monetary sanctions given his in forma pauperis status. (Id. at 8.) 9 PLAINTIFF’S RESPONSE 10 Plaintiff initially failed to respond to defendants’ motion to compel and for sanctions. 11 Plaintiff was ordered to file a response. (ECF No. 35.) Plaintiff’s filings in response stated that 12 he had been returned to custody and indicated that he had not received a copy of defendants’ 13 motion to compel and for sanctions. (ECF Nos. 38, 39.) The court directed defendants to reserve 14 a copy of the motion on plaintiff at his new address. (ECF No. 40.) 15 After defendants reserved the motion, plaintiff filed a response. (ECF No. 42.) Therein, 16 plaintiff states he has been held in jail since August 8, 2022, and did not receive notice for the 17 September 24, 2021, deposition. (Id. at 1.) Plaintiff requests that defendants re-set and re-notice 18 the deposition. 19 DISCUSSION 20 I. Motion to Compel 21 Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery 22 regarding any non-privileged matter that is relevant to any party’s claim or defense and 23 proportional to the needs of the case.” Federal Rule of Civil Procedure 37 provides that “a party 24 seeking discovery may move for an order compelling an answer, designation, production, or 25 inspection.” Fed. R. Civ. P. 37(a)(3)(B). The court may order a party to provide further 26 responses to an “evasive or incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). 27 “District courts have ‘broad discretion to manage discovery and to control the course of litigation 28 //// 1 under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th 2 Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 3 Defendants have the right to take plaintiff’s deposition under the Federal Rules. See Fed. 4 R. Civ. P. 30(a). Additionally, the discovery and scheduling order provided that defendants could 5 depose plaintiff provided that at least fourteen days before such deposition, they served plaintiff 6 with the notice required by Federal Rule of Civil Procedure 30(b)(1). (ECF No. 22 at 5 ¶ 4.) 7 Further, the court may order a party to attend a deposition. Sali v. Corona Regional Medical 8 Center, 884 F.3d 1218, 1222 (9th Cir. 2018) (citing Fed. R. Civ. P. 30). 9 Plaintiff is required to cooperate in discovery, which includes sitting for a deposition. 10 Should he fail to participate in a properly noticed deposition, he may be subject to sanctions, 11 including, but not limited to, a recommendation that this action be dismissed. Fed. R. Civ. P. 12 37(b)(2)(A).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HOUSTON, No. 2:20-cv-1051 KJM DB P 12 Plaintiff, 13 v. ORDER 14 NGAI, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding in forma pauperis with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Plaintiff claims that defendants failed to adequately respond to his mental 19 health issues in violation of the Eighth Amendment. Presently before the court is defendants’ 20 motion to compel and for sanctions. (ECF No. 34.)1 For the reasons set forth below, the court 21 will grant the motion to compel, deny the request to impose sanctions, and direct defendants to 22 reschedule and re-notice the deposition. 23 //// 24 //// 25
26 1 By order dated February 7, 2022, defendants were directed to reserve their motion to compel and for sanctions on plaintiff. (ECF No. 40.) However, it appears in addition to sending the 27 motion to plaintiff, the motion was also refiled on the docket. Review of the filings indicate the two motions are identical save for the additional proofs of service. (ECF No. 41 at 4, 7.) The 28 court will treat the refiled motion (ECF No. 41), as a duplicate filing. 1 DEFENDANTS’ MOTION 2 Defendants move for an order compelling plaintiff’s attendance at a deposition and 3 requesting the court impose monetary, or alternatively, terminating sanctions. (ECF No. 34.) 4 Defendants state they made multiple attempts to contact plaintiff to schedule a deposition. 5 However, plaintiff never responded and failed to attend the duly noticed deposition. (ECF No. 34 6 at 1.) 7 I. Background 8 Plaintiff filed a notice of change of address dated April 14, 2021, stating he had been 9 released from custody. (ECF No. 26.) Plaintiff’s notice of change of address did not include a 10 telephone number or email address. 11 On July 29, 2021, counsel for defendants wrote a letter to plaintiff stating that he wished 12 to schedule plaintiff’s deposition. (ECF No. 34 at 2.) The letter was mailed to the address 13 plaintiff provided. Defendants did not receive a response. 14 On September 10, 2021, defendants mailed a deposition notice to the address stating the 15 deposition was set for September 24, 2021, at 10:00 a.m. (Id.) The notice also advised plaintiff 16 the deposition was set to take place by videoconference in light of the ongoing COVID-19 17 pandemic. Defendants did not receive a response and the notice was not returned as 18 undeliverable. (Id.) On September 14, 2021, counsel for defendants also sent plaintiff 19 information on how to connect to the videoconference. Plaintiff did not respond to this letter, and 20 it was not returned as undeliverable. (Id. at 2-3.) 21 Defense counsel along with a court reporter attended the September 24, 2021, deposition. 22 (Id. at 3.) They waited until approximately 10:35 a.m., but plaintiff did not appear. Thereafter, 23 defendants filed in the instant motion to compel and request for sanctions. 24 II. Argument 25 Defendants state Federal Rule of Civil Procedure 30 permits the use of depositions to 26 conduct discovery. (ECF No. 34 at 3.) Defendants further argue that the notice was timely 27 served, the notice was sent plaintiff’s address of record, they made several attempts to meet and 28 //// 1 confer with plaintiff to schedule the deposition, and none of the correspondence was returned as 2 undeliverable. (Id. at 3-4.) 3 Defendants claim plaintiff’s failure to appear for the properly noticed deposition was 4 without justification. Thus, they allege, they are entitled to an order compelling plaintiff to attend 5 a deposition and monetary sanctions for the costs associated with the initial unsuccessful attempt 6 to depose plaintiff and the necessity of bringing the motion to compel. (Id. at 4.) Alternatively, 7 defendants argue the court should impose terminating sanctions because plaintiff is unlikely to be 8 able to pay monetary sanctions given his in forma pauperis status. (Id. at 8.) 9 PLAINTIFF’S RESPONSE 10 Plaintiff initially failed to respond to defendants’ motion to compel and for sanctions. 11 Plaintiff was ordered to file a response. (ECF No. 35.) Plaintiff’s filings in response stated that 12 he had been returned to custody and indicated that he had not received a copy of defendants’ 13 motion to compel and for sanctions. (ECF Nos. 38, 39.) The court directed defendants to reserve 14 a copy of the motion on plaintiff at his new address. (ECF No. 40.) 15 After defendants reserved the motion, plaintiff filed a response. (ECF No. 42.) Therein, 16 plaintiff states he has been held in jail since August 8, 2022, and did not receive notice for the 17 September 24, 2021, deposition. (Id. at 1.) Plaintiff requests that defendants re-set and re-notice 18 the deposition. 19 DISCUSSION 20 I. Motion to Compel 21 Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery 22 regarding any non-privileged matter that is relevant to any party’s claim or defense and 23 proportional to the needs of the case.” Federal Rule of Civil Procedure 37 provides that “a party 24 seeking discovery may move for an order compelling an answer, designation, production, or 25 inspection.” Fed. R. Civ. P. 37(a)(3)(B). The court may order a party to provide further 26 responses to an “evasive or incomplete disclosure, answer, or response.” Fed. R. Civ. P. 37(a)(4). 27 “District courts have ‘broad discretion to manage discovery and to control the course of litigation 28 //// 1 under Federal Rule of Civil Procedure 16.’” Hunt v. County of Orange, 672 F.3d 606, 616 (9th 2 Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011)). 3 Defendants have the right to take plaintiff’s deposition under the Federal Rules. See Fed. 4 R. Civ. P. 30(a). Additionally, the discovery and scheduling order provided that defendants could 5 depose plaintiff provided that at least fourteen days before such deposition, they served plaintiff 6 with the notice required by Federal Rule of Civil Procedure 30(b)(1). (ECF No. 22 at 5 ¶ 4.) 7 Further, the court may order a party to attend a deposition. Sali v. Corona Regional Medical 8 Center, 884 F.3d 1218, 1222 (9th Cir. 2018) (citing Fed. R. Civ. P. 30). 9 Plaintiff is required to cooperate in discovery, which includes sitting for a deposition. 10 Should he fail to participate in a properly noticed deposition, he may be subject to sanctions, 11 including, but not limited to, a recommendation that this action be dismissed. Fed. R. Civ. P. 12 37(b)(2)(A). Thus, defendants’ motion to compel plaintiff’s attendance at a deposition will be 13 granted. However, given plaintiff’s statement that he did not receive notice of the deposition, 14 defendants will be directed to reschedule and re-notice a deposition. Aubert v. Madruga, No. 15 1:13-cv-01659 GSA PC, 2015 WL 4507487, at *3 (E.D. Cal. July 24, 2015) (granting motion to 16 compel and directing defendants to reschedule plaintiff’s deposition after plaintiff failed to appear 17 at a properly noticed deposition). 18 II. Request for Sanctions 19 Defendants have also requested that the court impose sanctions based on plaintiff’s failure 20 to appear at the September 24, 2021, deposition. (ECF No. 34-1.) Defendants request monetary 21 sanctions in the amount of $2,200 for the costs associated with the initial attempt to depose 22 plaintiff and necessity of bringing the motion. (Id. at 4.) In the alternative they seek terminating 23 sanctions. (Id. at 7.) 24 Rule 37(d) provides that if a party fails to appear at a duly noticed deposition, the court 25 may order sanctions. Fed. R. Civ. P. 37(d)(3); Lew v. Kona Hospital, 754 F.2d 1420, 1426 (9th 26 Cir. 1985); Sali, 884 F.3d 1222. However, courts frequently refuse to impose monetary sanctions 27 on indigent parties. Hammler v. Franklin, No. 2:18-cv-5525 JGB (SP), 2021 WL 5238579 at *4 28 (C.D. Cal. Sept. 9, 2021) (citing Davis v. Morris, 2014 WL 1364895 at *3 (C.D. Cal. Apr. 4, 1 2014); Thomas v. Gerber Productions, 703 F.2d 353, 357 (9th Cir. 1983)); see also Lucero v. 2 Pennella, No. 1:18-cv-01448 NONE SAB, 2020 WL 4059552 at *4 (E.D. Cal. July 20, 2020) 3 (declining to impose monetary sanctions for failure to appear for a deposition in light of 4 plaintiff’s pro se and previously incarcerated status); Leonard v. Kaur, No. 2:19-cv-2271 DMC P, 5 2021 WL 242739 at *2 (E.D. Cal. Jan, 25, 2021) (declining to order sanctions or expenses given 6 plaintiff’s status as a prisoner proceeding in forma pauperis). 7 Because plaintiff is incarcerated and proceeding in forma pauperis, the court will deny 8 defendants request for sanctions. However, plaintiff is advised that further failure to comply with 9 discovery or to appear for a properly noticed deposition may result in sanctions. Sanctions may 10 include dismissal of plaintiff’s case. Fed. R. Civ. P. 37(b)(2)(A)(v). Additionally, Local Rule 11 183(b) requires individuals appearing in propria persona, such as plaintiff, are required to “keep 12 the Court and opposing parties advised as to her or her current address.” 13 SCHEDULING 14 After filing their motion to compel, Defendants moved for an order vacating the deadlines 15 in the courts March 23, 2021, discovery and scheduling order. (ECF No. 36.) By order dated 16 December 21, 2021, the court granted the motion and indicated new dates would be scheduled 17 following resolution of the motion to compel and for sanctions. (ECF No. 37.) Because the court 18 has resolved the motion to compel, it will set new deadlines for completing discovery and pretrial 19 motions by separate order. 20 //// 21 //// 22 //// 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Defendants’ motions to compel (ECF No. 34; ECF No. 41) are granted; 4 2. Defendants’ request for sanctions is denied; and 5 3. Within forty-five days of the date of this order defendants shall reschedule and re- 6 || notice plaintiffs deposition. 7 | Dated: March 31, 2022 8 9 10 -BORAH BARNES UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 DB:12 18 || DB/DB Prisoner Inbox/Civil.Rights/S/hous1051.mte + sanct 19 20 21 22 23 24 25 26 27 28