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Siriphone v. Acceptance Indemnity Insurance Co.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 31, 2008

VILAY SIRIPHONE DBA IKE'S TRANSMISSION AND CLUTCH, PLAINTIFF,
v.
ACCEPTANCE INDEMNITY INSURANCE COMPANY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Jan M. Adler U.S. Magistrate Judge

ORDER GRANTING MOTION TO COMPEL DEPOSITION OF JEAN SIRIPHONE

[Document No. 35]

On June 19, 2008, Defendant Acceptance Indemnity Insurance Company ("Acceptance") filed a Motion to Compel Deposition of Jean Siriphone ("Motion"), a third-party witness who failed to appear after having been served with a "Subpoena in a Civil Case" ("subpoena") in this action. Ms. Siriphone filed no objection to the subpoena and no opposition to the Motion. Because Acceptance has shown that it complied with the requirements of Fed. Rule Civ. Proc. 45 in serving the subpoena on Ms. Siriphone, and because Ms. Siriphone has failed to present an adequate excuse for not obeying the subpoena as provided by the Federal Rules of Civil Procedure, the Court GRANTS Acceptance's Motion and ORDERS Ms. Siriphone to appear for her deposition in this case.

This is an action for bad faith concerning the handling of the claim of Plaintiff Vilay Siriphone dba Ike's Transmission & Clutch for first-party coverage benefits arising out of a theft which occurred on May 12, 2005, at the insured premises. (Declaration of Tod M. Castronovo in Support of Motion [Doc. No. 35-2] ("T.M.C. Decl.") at ¶ 2; See Notice of Removal [Doc. No. 1], Exhibit A at pp. 7-13 (Complaint).) On January 31, 2008, Acceptance served a Notice of Taking Deposition of Jean Siriphone for March 24, 2008. (T.M.C. Decl. at ¶ 4; Exhibits in Support of Motion [Doc. No. 35-4] ("Exhibits") at Exh. A.) On March 24, 2008, as counsel for Acceptance traveled to Carlsbad to take Ms. Siriphone's deposition, he received a telephone call from Plaintiff's counsel, Andy Van Le, advising that Ms. Siriphone was ill and would not appear for her scheduled deposition. (T.M.C. Decl. at ¶ 5.)

On April 27, 2008, Acceptance caused Ms. Siriphone to be served with a subpoena issued by this Court, requiring her to appear for her rescheduled deposition on May 20, 2008. (Exhibits at Exh. B.) When Ms. Siriphone was served with the subpoena, she advised the process server that she would not appear for her deposition. Ms. Siriphone did in fact fail to appear for her rescheduled deposition on May 20, 2008. (T.M.C. Decl. at ¶ 7; Exhibits at Exh. C.)

On May 21, 2008, counsel for Acceptance, Mr. Castronovo, mailed a letter to Ms. Siriphone, giving her one last opportunity to comply with the subpoena before he filed this Motion. (T.M.C. Decl. at ¶ 8; Exhibits at Exh. D.) Mr. Castronovo received no response from Ms. Siriphone. (T.M.C. Decl. at ¶¶ 8-9.) On June 5, 2008, Mr. Castronovo spoke with Mr. Van Le to determine whether he had the ability to produce Ms. Siriphone for her deposition. Mr. Van Le informed him that he had no such ability and further informed Mr. Castronovo that Ms. Siriphone's doctor had indicated that her health did not permit her giving a deposition at that time. (Id. at ¶ 10; Exhibits at Exh. E.) By facsimile dated June 6, 2008, Mr. Castronovo received a letter from Ms. Siriphone's doctor stating that Ms. Siriphone's deposition could be taken sixty (60) days after May 20, 2008. (T.M.C. Decl. at ¶ 11; Exhibits at Exh. F.)*fn1

Acceptance contends that Ms. Siriphone's deposition is necessary because she is a percipient witness to one of the central issues in this action, that is, Plaintiff's report to the San Diego Police Department regarding the value of the tools allegedly stolen from his automotive garage. At the time of the alleged theft, the tools were valued at approximately $1,700; now, the alleged value is in excess of $100,000. (T.M.C. Decl. at ¶ 12.) Additionally, Ms. Siriphone has percipient knowledge of Plaintiff's claim that he lost his business because of the manner in which the claim was adjusted, and Plaintiff contends that the manner in which the claim was adjusted resulted in Ms. Siriphone divorcing Plaintiff. (Id. at ¶ 13.) Moreover, Ms. Siriphone's deposition is necessary because she was the contact person for all dealings with the insurer and adjuster during the adjustment of Plaintiff's insurance claim. (Id. at ¶ 14.)

Pursuant to Fed. Rule of Civ. Proc. 45(a)(2)(B), a subpoena to depose a nonparty witness "must issue ... from the court for the district where the deposition will be taken." Defendant complied with the federal rule in issuing and serving the subpoena on Ms. Siriphone in this case. (See Exhibits at Exh. B.) The subpoena form advised Ms. Siriphone of her rights concerning the subpoena, and specifically informed her that:

Failure of any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend ... at a place not within [100 miles of home or business].

(Fed. Rule Civ. Proc. 45(e)(emphasis supplied); Exhibits at Exh. B). Ms. Siriphone filed no objection to the subpoena and took no action other than transmitting to Mr. Castronovo, through Mr. Van Le, the letter from Dr. Trung Quy Tran indicating that she would be medically cleared to attend her deposition anytime after July 20, 2008.

In light of the foregoing, the Court ORDERS the following:

(1) Mr. Castronovo shall cause this Order to be served on Jean Siriphone not later than August 8, 2008;

(2) Jean Siriphone shall appear for her deposition on a mutually agreed-upon date among herself, Mr. Castronovo, and Mr. Van Le (or their offices), but in no event shall Jean Siriphone appear for her deposition after August 29, 2008 absent further order of the Court;

(3) The Court requests that Mr. Van Le assist Mr. Castronovo is securing Jean Siriphone's attendance at her deposition by telephoning her and explaining to her the potential consequences of a finding of civil contempt of court.

Jean Siriphone is strongly cautioned that failure to comply with this Order and appear for her deposition may result in a finding of civil contempt of court, which can carry with it a monetary fine in the form of a judgment against her. (See 18 U.S.C. § 401.)

IT IS SO ORDERED.


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