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Beard v. Shuttermart of California

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 27, 2007

TOM G. BEARD, PLAINTIFF,
v.
SHUTTERMART OF CALIFORNIA, INC., A CALIFORNIA CORPORATION, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge

ORDER GRANTING PLAINTIFF'S EX PARTE MOTION FOR ORDER COMPELLING DEFENDANT RONQUILLO'S ATTENDANCE AT DEPOSITION AND AWARDING ATTORNEYS' FEES & COSTS [Doc. No. 41]

Before the Court in the above-captioned matter is Plaintiff Tom G. Beard's Ex Parte Motion seeking an order of the Court compelling Defendant Richard Ronquillo's attendance at his deposition and for attorneys' fees and costs [Doc. No. 41]. Plaintiff argues that Ronquillo failed to appear on time for his properly noticed deposition on November 13, 2007. Plaintiff seeks an order from this Court compelling Ronquillo to appear and be deposed on December 5, 2007. (Plaintiff's Motion, Memorandum of Points and Authorities in Support ("Memorandum"), 4.) Plaintiff also requests an award of attorneys fees and costs pursuant to Rule 37(a)(4)(A). (Id. at 5-6.) Ronquillo has not filed an opposition to Plaintiff's motion. For the following reasons, Plaintiff's Ex Parte Motion [Doc. No. 41] is GRANTED.

DISCUSSION

Defendant Richard Ronquillo failed to appear for his properly noticed deposition on August 24, 2007. Subsequently, Plaintiff filed a motion to compel seeking an order from the Court compelling Ronquillo to appear and be deposed [Doc. No. 36]. The Court granted Plaintiff's motion, and ordered Ronquillo to make himself available to be deposed at a time and place to be agreed upon by counsel for the parties. (See Court's October 18, 2007 Order, Doc. No. 40.) The Court also cautioned Ronquillo that failure "to comply with this order shall be grounds for imposition of sanctions, including but not limited to exclusion of evidence, taking certain facts as established, and/or monetary sanctions." (Id. at 3.)

In the instant exparte motion, Plaintiff alleges that pursuant to the Court's October 18, 2007 order, counsel attempted to schedule a time and date for Ronquillo's deposition. (Plaintiff's Ex Parte Motion, Declaration of Peter Shenas ¶ 2.) According to Plaintiff's counsel, Peter Shenas, he emailed Ronquillo's attorney, Dave Carothers, on October 30, 2007 regarding possible dates and times for the deposition to be rescheduled. (Id., Ex. "A.") After receiving an "out of office" automated reply to the email, Shenas called Carothers' office and spoke to his assistant who confirmed that Carothers was out of town and not available. (Id., Ex. "B.") On November 2, 2007, after being unable to get in touch with either Carothers or his assistant, Shenas served by mail a Notice of Deposition, scheduling Ronquillo's deposition for November 13, 2007 at 9:30 a.m. at his law office. (Id., Ex. "C.") A letter from Shenas also accompanied the notice, advising Carothers to let him know immediately if November 13, 2007 would not be acceptable for either himself or Ronquillo. (Id., Ex. "D.") On November 12, 2007, Carothers contacted Shenas to request that the deposition be continued. Shenas declined the request. (Id., Ex. "E.") Later that day, Carothers advised Shenas that he would not be joining Ronquillo at the deposition because he was being terminated at Ronquillo's legal counsel in the case. (Id., Ex. "F.")

At 9:30 a.m. on November 13, 2007, Mr. Shenas, along with a court reporter and Thomas Monson, counsel for co-defendants Terry Udelhofen and Robin Hart, assembled for the deposition at Shenas' office. Ronquillo was not present, and at 9:40 a.m. the court reporter recorded the proceedings and left. (Id., Ex. "G.") Ronquillo finally arrived at Shenas' office as 10:45 a.m., at which time Shenas informed Ronquillo that the deposition could not proceed because of his tardiness, and that he would be contacted to once against reschedule. Shenas then prepared and filed the instant ex parte motion, and contacted Thomas Monson regarding his availability for rescheduling the Ronquillo deposition on December 5, 2007. (Id.)

Plaintiff now seeks an order from the Court compelling Ronquillo to appear and be deposed on December 5, 2007. Plaintiff also requests attorneys' fees related to the time spent by his attorney scheduling the November 13, 2007 deposition, court reporter costs, and the preparation of this motion. (Id ¶ 4.)

Under Rule 37(d) of the Federal Rules of Civil Procedure, if a party fails to appear at his deposition, the Court may impose any of the sanctions authorized under Rule 37(b)(2)(A), (B) and (C). In lieu of, or in addition to, those sanctions, the Court shall require the party failing to appear to pay the reasonable expenses (including attorneys' fees) caused by the failure, unless it concludes that the failure was substantially justified or that other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(d). Sanctions for failure to appear at a deposition may be imposed even absent a prior court order. See Henry v. Gill Indus., Inc., 983 F.2d 943, 947 (9th Cir. 1993) (repeated cancellations at the last minute constitute a failure to appear). Moreover, there is no need to find that the failure to attend was "willful." See Lew v. Kona Hospital, 754 F.2d 1420, 1427 (9th Cir. 1985) ("Even a negligent failure to allow reasonable discovery may be punished.").

Accordingly, good cause appearing, Plaintiff's Ex Parte Motion [Doc. No. 41] is GRANTED IT IS HEREBY ORDERED THAT Defendant Richard Ronquillo appear and be deposed pursuant to Federal Rule of Civil Procedure 30 on December 5, 2007 at the law offices of Peter Shenas, 750 B Street, Suite 2510, San Diego, California, 92101. Failure by Ronquillo to comply with this order shall be grounds for imposition of sanctions, including but not limited to exclusion of evidence, taking certain facts as established, and/or monetary sanctions. See Fed. R. Civ. P. 37(c).

ATTORNEYS'FEES &COSTS

Plaintiff requests that the Court order Ronquillo to pay the attorneys' fees and court reporter costs incurred by Plaintiff in relation to the failed deposition attempt, as well as the preparation and filing of this motion. (Plaintiff's Memorandum, 2-3.) Plaintiff states that the fees total $2,239.05, which includes 7.2 hours of counsel's labor at a billable rate of $285.00 per hour, totaling $2052.00, plus $187.50 in court reporter charges. (Declaration of Peter Shenas ¶ 4.)

Federal Rule of Civil Procedure 37 states that if a Court grants a motion to compel "or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party . . . or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorneys' fees, unless the court finds that . . . the opposing party's non-disclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust." FED. R. CIV. P. 37(a)(4)(A). The Court has ordered Ronquillo to participate in discovery. Ronquillo did not file an opposition to Plaintiff's motion, and has failed to demonstrate any substantially justified excuse for failing to comply with the discovery rules and with this Court's previous orders.

Accordingly, the Court GRANTS Plaintiff's request for attorneys' fees and costs. Defendant Richard Ronquillo is hereby ORDERED to pay the sum of $2,239.05 directly to Plaintiff's counsel, Peter Shenas, no later than December 21, 2007.

IT IS SO ORDERED.

20071127

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