1 WO 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA
7 Geoffrey A Thomas, No. CV-22-00257-TUC-JCH
8 Plaintiff, ORDER
9 v.
10 Jeffery Shields, et al.,
11 Defendants. 12 13 Before the Court is Plaintiff's "Motion for Sanctions or, in the Alternative, To 14 Compel Defendants' Depositions" ("Motion") filed under Federal Rules of Civil Procedure 15 30 and 37. Doc. 38. Plaintiff asserts that Defendants have twice failed to appear for their 16 properly noticed depositions. Id. at 1. Plaintiff requests that the Court (1) strike Defendants' 17 answer and enter default against them; (2) in the alternative, order Defendants to appear 18 for their depositions in Tucson, Arizona on or before June 28, 2023, with the sanction of 19 default if they fail to do so; and (3) order Defendants to pay Plaintiff's attorneys' fees caused 20 by Defendants' failure to appear for their depositions. Id. Defendant Jeffery Shields filed a 21 response and declaration in opposition.1 Plaintiff filed a Reply. Doc. 42. For the following 22 reasons, the Court will grant the Motion. 23 I. Motion to Compel 24 A. Legal Standard 25 In general, parties may obtain discovery regarding any matter, not privileged, that
26 1 The Response bears the names of both Jeffery Shields and Terel Shields. Both defendants are proceeding pro se. The Court has previously admonished the Defendants that while a party may 27 represent himself and manage his own case in federal court, see 28 U.S.C.A. § 1654, "[i]t is well established that the privilege to represent oneself … is personal to the litigant and does not extend 28 to other parties or entities." Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). See Doc. 17 at 1 n.3. As such, Defendant Terel Shields did not file a Response. 1 is "relevant to any party's claim or defense and proportional to the needs of the case." Fed. 2 R. Civ. P. 26(b)(1). Factors to consider include "the importance of the issues at stake in the 3 action, the amount in controversy, the parties' relative access to relevant information, the 4 parties' resources, the importance of the discovery in resolving the issues, and whether the 5 burden or expense of the proposed discovery outweighs its likely benefit." Id. An item need 6 not be admissible in evidence to be discoverable. Id. One of the available discovery tools 7 is a deposition. "A party may, by oral questions, depose any person, including a party 8 without leave of court," except that leave is required under certain circumstances not 9 present here. Fed. R. Civ. P. 30(a)(1). 10 A motion to compel discovery is appropriate when a party refuses to engage in or 11 produce discovery. See Fed. R. Civ. P. 37(a)(2). The movant must certify that he or she has 12 in good faith conferred or attempted to confer with the party failing to make discovery to 13 secure information or material without court action. See Fed. R. Civ. P. 37(a)(1). The court 14 also may award sanctions if a party "fails after being served with proper notice, to appear 15 for that person's deposition." Fed. R. Civ. P. 37(d)(1)(A). "A motion for sanctions for 16 failing to answer or respond must include a certification that the movant conferred or 17 attempted to confer with the party failing to act in an effort to obtain the answer or response 18 without court action." Fed. R. Civ. P. 37(d)(1)(B). 19 B. Analysis 20 The discovery sought by Plaintiff—the Defendants' deposition—is relevant to the 21 claims and possibly the defenses in this action and proportional to the needs of the case. 22 See Fed. R. Civ. P. 26(b)(1). Defendants have twice failed to appear for their scheduled 23 and properly noticed depositions. On March 13, 2023, Plaintiff filed and served notices for 24 both Defendants' depositions to occur in Tucson, Arizona, on April 25, 2023. Docs. 29, 30. 25 Defendants had six-weeks' notice. Id. In the interim, Defendants did not object or seek a 26 protective order. See generally, Dckt. Defendants did not appear and claimed they were in 27 the process of retaining legal counsel. On May 1, 2023, Plaintiff filed and served amended 28 notices for both Defendants' depositions, setting the depositions for May 11, 2023, in 1 Tucson, Arizona. Docs. 35, 36. Again, Defendants did not object to the notices or seek a 2 protective order. See generally, Dckt. Defendants did not appear and claimed Defendant 3 Terel Shields fell ill from food poisoning. Doc. 39-1 at 3. 4 It does not appear to the Court that Defendants are operating in good faith. 5 Defendants unilaterally postponed their scheduled depositions with little or no warning. In 6 both instances, Defendants failed to provide alternative dates or arrangements. For 7 example, two days before the April 21, 2023 deposition, Defendants stated, "[w]e fully 8 intend to retain counsel now to attend the depositions with us . . . ." and later, "[o]ur lawyer 9 is undertaking conflict checks and will be writing to you this week to reschedule 10 depositions." Doc. 38-1, Burstein Decl. ¶ 3, Ex. A, B. Defendants refused to tell Plaintiff's 11 counsel the name of the lawyer they had supposedly retained, stating "[i]t is not wise for 12 us to give you his name." Id. at Ex. B. In his response, Defendant indicates "[m]ultiple 13 attorneys looked into assisting the defendants before ultimately deciding against it" without 14 providing any further details or explanation. Doc. 39 at 6. On May 11, 2023, the morning 15 of the second scheduled deposition, Defendants explained that "personal health 16 circumstances" arose and prevented their attendance. Doc. 38-1, Burstein Decl. ¶ 10, Ex. 17 D ("We had planned to inform you yesterday when the situation materialised [sic] but 18 unfortunately was not [sic] in a position to do so."). In his Response, Defendant Jeffery 19 Shields did not include proof of illness substantiating the "personal health circumstances," 20 proof of cancelled travel arrangements, such as airfare or lodging, or proof of consultation 21 with any law firm. Defendants’ actions appear dilatory. 22 Defendant Jeffery Shields argues that the depositions should be conducted remotely 23 and disputes whether good faith requirements were met by Plaintiff's counsel. See Doc. 39. 24 He asserts that the co-defendants are willing and able to attend their videoconference 25 depositions on June 28. Id. Plaintiff has accommodated this request and noticed 26 Defendants' videoconference depositions in Salt Lake City, Utah, on June 28, 2023. See 27 Docs. 40, 41. A party's failure to attend his or her own deposition "is not excused on the 28 ground that the discovery sought was objectionable, unless the party failing to act has a 1 pending motion for a protective order under Rule 26(c)." Fed. R. Civ. P. 37(d)(2). 2 Defendant Jeffery Shields did not timely object to the location of their noticed depositions 3 and may not do so now. Nor is the Court persuaded by the other arguments raised by the 4 Defendant.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA
7 Geoffrey A Thomas, No. CV-22-00257-TUC-JCH
8 Plaintiff, ORDER
9 v.
10 Jeffery Shields, et al.,
11 Defendants. 12 13 Before the Court is Plaintiff's "Motion for Sanctions or, in the Alternative, To 14 Compel Defendants' Depositions" ("Motion") filed under Federal Rules of Civil Procedure 15 30 and 37. Doc. 38. Plaintiff asserts that Defendants have twice failed to appear for their 16 properly noticed depositions. Id. at 1. Plaintiff requests that the Court (1) strike Defendants' 17 answer and enter default against them; (2) in the alternative, order Defendants to appear 18 for their depositions in Tucson, Arizona on or before June 28, 2023, with the sanction of 19 default if they fail to do so; and (3) order Defendants to pay Plaintiff's attorneys' fees caused 20 by Defendants' failure to appear for their depositions. Id. Defendant Jeffery Shields filed a 21 response and declaration in opposition.1 Plaintiff filed a Reply. Doc. 42. For the following 22 reasons, the Court will grant the Motion. 23 I. Motion to Compel 24 A. Legal Standard 25 In general, parties may obtain discovery regarding any matter, not privileged, that
26 1 The Response bears the names of both Jeffery Shields and Terel Shields. Both defendants are proceeding pro se. The Court has previously admonished the Defendants that while a party may 27 represent himself and manage his own case in federal court, see 28 U.S.C.A. § 1654, "[i]t is well established that the privilege to represent oneself … is personal to the litigant and does not extend 28 to other parties or entities." Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008). See Doc. 17 at 1 n.3. As such, Defendant Terel Shields did not file a Response. 1 is "relevant to any party's claim or defense and proportional to the needs of the case." Fed. 2 R. Civ. P. 26(b)(1). Factors to consider include "the importance of the issues at stake in the 3 action, the amount in controversy, the parties' relative access to relevant information, the 4 parties' resources, the importance of the discovery in resolving the issues, and whether the 5 burden or expense of the proposed discovery outweighs its likely benefit." Id. An item need 6 not be admissible in evidence to be discoverable. Id. One of the available discovery tools 7 is a deposition. "A party may, by oral questions, depose any person, including a party 8 without leave of court," except that leave is required under certain circumstances not 9 present here. Fed. R. Civ. P. 30(a)(1). 10 A motion to compel discovery is appropriate when a party refuses to engage in or 11 produce discovery. See Fed. R. Civ. P. 37(a)(2). The movant must certify that he or she has 12 in good faith conferred or attempted to confer with the party failing to make discovery to 13 secure information or material without court action. See Fed. R. Civ. P. 37(a)(1). The court 14 also may award sanctions if a party "fails after being served with proper notice, to appear 15 for that person's deposition." Fed. R. Civ. P. 37(d)(1)(A). "A motion for sanctions for 16 failing to answer or respond must include a certification that the movant conferred or 17 attempted to confer with the party failing to act in an effort to obtain the answer or response 18 without court action." Fed. R. Civ. P. 37(d)(1)(B). 19 B. Analysis 20 The discovery sought by Plaintiff—the Defendants' deposition—is relevant to the 21 claims and possibly the defenses in this action and proportional to the needs of the case. 22 See Fed. R. Civ. P. 26(b)(1). Defendants have twice failed to appear for their scheduled 23 and properly noticed depositions. On March 13, 2023, Plaintiff filed and served notices for 24 both Defendants' depositions to occur in Tucson, Arizona, on April 25, 2023. Docs. 29, 30. 25 Defendants had six-weeks' notice. Id. In the interim, Defendants did not object or seek a 26 protective order. See generally, Dckt. Defendants did not appear and claimed they were in 27 the process of retaining legal counsel. On May 1, 2023, Plaintiff filed and served amended 28 notices for both Defendants' depositions, setting the depositions for May 11, 2023, in 1 Tucson, Arizona. Docs. 35, 36. Again, Defendants did not object to the notices or seek a 2 protective order. See generally, Dckt. Defendants did not appear and claimed Defendant 3 Terel Shields fell ill from food poisoning. Doc. 39-1 at 3. 4 It does not appear to the Court that Defendants are operating in good faith. 5 Defendants unilaterally postponed their scheduled depositions with little or no warning. In 6 both instances, Defendants failed to provide alternative dates or arrangements. For 7 example, two days before the April 21, 2023 deposition, Defendants stated, "[w]e fully 8 intend to retain counsel now to attend the depositions with us . . . ." and later, "[o]ur lawyer 9 is undertaking conflict checks and will be writing to you this week to reschedule 10 depositions." Doc. 38-1, Burstein Decl. ¶ 3, Ex. A, B. Defendants refused to tell Plaintiff's 11 counsel the name of the lawyer they had supposedly retained, stating "[i]t is not wise for 12 us to give you his name." Id. at Ex. B. In his response, Defendant indicates "[m]ultiple 13 attorneys looked into assisting the defendants before ultimately deciding against it" without 14 providing any further details or explanation. Doc. 39 at 6. On May 11, 2023, the morning 15 of the second scheduled deposition, Defendants explained that "personal health 16 circumstances" arose and prevented their attendance. Doc. 38-1, Burstein Decl. ¶ 10, Ex. 17 D ("We had planned to inform you yesterday when the situation materialised [sic] but 18 unfortunately was not [sic] in a position to do so."). In his Response, Defendant Jeffery 19 Shields did not include proof of illness substantiating the "personal health circumstances," 20 proof of cancelled travel arrangements, such as airfare or lodging, or proof of consultation 21 with any law firm. Defendants’ actions appear dilatory. 22 Defendant Jeffery Shields argues that the depositions should be conducted remotely 23 and disputes whether good faith requirements were met by Plaintiff's counsel. See Doc. 39. 24 He asserts that the co-defendants are willing and able to attend their videoconference 25 depositions on June 28. Id. Plaintiff has accommodated this request and noticed 26 Defendants' videoconference depositions in Salt Lake City, Utah, on June 28, 2023. See 27 Docs. 40, 41. A party's failure to attend his or her own deposition "is not excused on the 28 ground that the discovery sought was objectionable, unless the party failing to act has a 1 pending motion for a protective order under Rule 26(c)." Fed. R. Civ. P. 37(d)(2). 2 Defendant Jeffery Shields did not timely object to the location of their noticed depositions 3 and may not do so now. Nor is the Court persuaded by the other arguments raised by the 4 Defendant. 5 As such, Defendants must comply with Plaintiff's notice of deposition, appear as 6 scheduled on June 28, 2023, and participate in good faith during the deposition. Defendants 7 are cautioned that failure to attend the deposition will result in sanctions. Sanctions may 8 include, but are not limited to: monetary sanctions, an order prohibiting Defendants from 9 supporting or opposing designated claims or defenses, an order striking pleadings, and 10 default. See Fed. R. Civ. P. 37(b)(2) and 37(d)(3). 11 II. Motion for Attorneys' Fees 12 A. Legal Standard 13 Rule 37(a)(5) provides that if a motion to compel is granted, or if the disclosure or 14 requested discovery is provided after the motion was filed, "the court must, after giving an 15 opportunity to be heard, require the party or deponent whose conduct necessitated the 16 motion, the party or attorney advising that conduct, or both to pay the movant's reasonable 17 expenses incurred in making the motion, including attorney's fees." Fed. R. Civ. P. 18 37(a)(5)(A) (emphasis added). However, the rule also identifies three circumstances in 19 which a court may decline to award fees despite granting a motion to compel: (1) if "the 20 movant filed the motion before attempting in good faith to obtain the disclosure or 21 discovery without court action"; (2) if "the opposing party's nondisclosure, response, or 22 objection was substantially justified"; or (3) if "other circumstances make an award of 23 expenses unjust." Id. 24 B. Analysis 25 Here, none of the exceptions are applicable. First, Plaintiff made multiple attempts 26 to meet-and-confer with Defendants before filing the motion to compel. Second, the 27 reasons for failing to appear are not substantially justified. Defendants did not timely object 28 to the noticed depositions and offer no proof to substantiate their absences. As a result, Plaintiff was needlessly forced to waste time and money in both rescheduling the abandoned depositions and litigating the motion to compel. Accordingly, under || Rule 37(a)(5)(A), Plaintiff's request for attorney's fees, incurred in bringing the Motion is granted. Plaintiff is directed to submit his Application for Attorneys’ Fees by June 28, 2023. 5|| II. Order 6 IT IS ORDERED GRANTING Plaintiff's "Motion for Sanctions or, in the 7\| Alternative, To Compel Defendants’ Depositions" (Doc. 38). Defendants shall appear at 8 || the scheduled deposition on June 28, 2023. Failure to do so will result in sanctions. 9 IT IS FURTHER ORDERED AWARDING ATTORNEYS’ FEES. Plaintiff is || directed to submit his Application for Attorneys’ Fees, under Fed. R. Civ. P. 37(a)(5)(A), 11 || on or before June 30, 2023. Defendants shall file their respective Oppositions no later than || 21 days after service of the motion; and (3) Plaintiff shall file an optional Reply (no more 13 || than 5 pages) to the Oppositions no later than 14 days after service of the Oppositions. 14 Dated this 20th day of June, 2023. 15 16 □
17 9S MH herb onorable John C. Hinderaker 18 United States District Judge 19 20 21 22 23 24 25 26 27 28
_5-