Sykes v. Henderson Police Department

• Court: District Court, D. Nevada
• Decided: May 13, 2025
• Docket: 2:22-cv-00956
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 MARK CLIFFORD SYKES, Case No. 2:22-cv-00956-JAD-EJY

5 Plaintiff,

6 v. ORDER

7 HENDERSON POLICE DEPARTMENT, et al., 8 Defendants. 9 10 Pending before the Court is the Emergency Motion to Dismiss the Remaining Claims in 11 Plaintiff’s First Amended Complaint in which Defendants primarily argue Plaintiff failed to appear 12 for his deposition on an agreed upon date. ECF No. 37. Plaintiff’s non-appearance came after an 13 attorney contacted defense counsel stating she had been retained by Plaintiff and that Plaintiff would 14 not appear for deposition. However, as of the date Defendants filed their Motion to Dismiss there 15 had been no subsequent communication from Plaintiff’s putative counsel and, because of the stated 16 representation, Defendants felt they could not contact Plaintiff directly. Of course, Defendants could 17 have reached out to Plaintiff asking if he was, in fact, represented. Defendants could also have 18 attempted to contact Plaintiff’s putative counsel. Defendants did neither; yet Defendants accuse 19 Plaintiff of bad faith for failing to contact them to reschedule his deposition. 20 Following a Court Order, Plaintiff filed an Opposition to Defendants’ Motion to Dismiss. 21 ECF No. 40. He appeared pro se. Plaintiff explains that he relied on the attorney he sought to retain 22 when he failed to appear for the previously agreed upon deposition. In fact, Plaintiff provides the 23 Court with correspondence from his putative attorney confirming he did not need to appear. 24 The Court may impose sanctions for the failure of a party to appear for deposition, Fed. R. 25 Civ. P. 37(d)(1)(A)(i), or to respond to written discovery, Fed. R. Civ. P. 37(d)(1)(A)(ii). The 26 sanctions that may be imposed include those listed in Rule 37(b)(2)(A)(i)-(vi), some of which 27 contemplate severe sanctions such as dismissal, which is sought here. Fed. R. Civ. P. 37(d)(3). Case 1 Co., 762 F.2d 1334, 1338 (9th Cir. 1985). When analyzing a request for case-dispositive sanctions, 2 the Court considers (1) the public’s interest in expeditious resolution of litigation, (2) the Court’s 3 need to manage its docket, (3) the risk of prejudice to the opposing party, (4) the public policy 4 favoring disposition of cases on their merits, and (5) the availability of less drastic sanctions. Hester 5 v. Vision Airlines, Inc., 687 F.3d 1162, 1169 (9th Cir. 2012). The Court must also consider whether 6 the misconduct involved willfulness, fault, or bad faith. Sigliano v. Mendoza, 642 F.2d 309, 310 7 (9th Cir. 1981). The Court has “great latitude” in imposing sanctions under Rule 37. Lew v. Kona 8 Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985). 9 Here, the Court is sympathetic to Defendants’ position; however, under the circumstances 10 and evidence presented (despite Defendants’ view of that evidence), the Court finds insufficient 11 support for dismissal of Plaintiff’s operative Complaint. Plaintiff mistakenly, but nonetheless in 12 apparent good faith, relied on counsel to form a reasonable belief that he did not need to appear for 13 his deposition. There is no evidence of Plaintiff’s fault, bad faith or willfulness with respect to his 14 nonappearance. While Plaintiff may have litigated previously, and is certainly bound by the same 15 rules of procedure as represented parties, the Court’s review of the evidence does not support the 16 conclusion that Plaintiff intended to misrepresent or does misrepresent the circumstances of his 17 effort to obtain counsel or his understanding of his need to appear for deposition. The Court further 18 finds the delay to allow Defendants to take Plaintiff’s deposition is not so great as to impact the 19 resolution of this litigation; the Court’s docket is not disadvantaged by allowing Defendants to 20 depose Plaintiff; allowing Plaintiff to be deposed promotes a decision on the merits; and less drastic 21 sanctions are available as discussed below. 22 The Court nonetheless concludes it is appropriate to sanction Plaintiff and not relieve him of 23 the repercussions arising from his failure to appear for deposition when notice of his non-appearance 24 was provided to Defendants on the same day as the deposition by simply informing Defendants that 25 Plaintiff would not appear. E.g., Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. 26 Ass’n, 316 F.R.D. 327, 337 n.8 (D. Nev. 2016). Plaintiff is further warned that failure to appear at 27 his duly notice deposition will not be excused a second time absent advanced agreement by 1 Accordingly, IT IS HEREBY ORDERED that Defendants’ Emergency Motion to Dismiss 2 the Remaining Claims in Plaintiff’s First Amended Complaint (ECF No. 37) is DENIED. 3 IT IS FURTHER ORDERED that discovery is reopened for a period of 45 days (that is, 4 through June 26, 2025) for the sole purpose of allowing Defendants to take Plaintiff’s deposition. 5 No other discovery is to occur during this period. 6 IT IS FURTHER ORDERED that Plaintiff must cooperate with Defendants in selecting a 7 new date for his appearance at deposition, which appearance may be remote. Plaintiff’s failure to 8 appear at the newly selected date for deposition will result in sanctions up to and including dismissal 9 of his case unless his appearance is excused by agreement with Defendants in advance of the date 10 selected. 11 IT IS FURTHER ORDERED that the deadline for filing dispositive motions is reset to 12 August 7, 2025. 13 IT IS FURTHER ORDERED that the proposed joint pretrial order due date is September 9, 14 2025; provided, however, that if one or more dispositive motion is pending on this date, the due date 15 for the proposed joint pretrial order is automatically vacated and reset for thirty (30) days after all 16 dispositive motions are resolved. 17 IT IS FURTHER ORDERED that monetary sanctions in the form of repayment of costs 18 associated with same day cancellation of Plaintiff’s deposition are deferred until this case is resolved. 19 If this matter is resolved through motion practice or trial and Defendants prevail on all counts, 20 Defendants are entitled to seek reimbursement of the costs associated with the cancelled deposition 21 from Plaintiff by filing a motion seeking such reimbursement. If Plaintiff prevails on one or more 22 claims for which damages are awarded, then the costs due Defendants arising from the cancelled 23 deposition must be offset against that damages award. If settlement is reached, the costs must be 24 accounted for in that settlement through an offset against amounts, if any, Defendants agree to pay 25 Plaintiff in resolution. 26 Dated this 13th day of May, 2025.