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DeShazier v. Williams

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 12, 2009

RANDY DESHAZIER, PLAINTIFF,
v.
HANFORD POLICE OFFICER DALE WILLIAMS, BADGE NO. 121; HANFORD POLICE OFFICER MITCH SMITH, BADGE NO. 39; POLICE SERGEANT RUSSELL HILYAND; AND CITY OF HANFORD, CALIFORNIA, DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON PLAINTIFFS' COUNSEL'S APPLICATION FOR RELIEF FROM COURT'S ORDER OF DECEMBER 26, 2007, AWARDING MONETARY SANCTIONS Doc. # 70

On October 15, 2007, the Magistrate Judge issued findings of fact and recommendations of law ("F&R's") that recommended terminating sanctions and compensatory monetary sanctions based on the failure of Plaintiff's attorney, Kevin Little ("Little"), to comply with discovery procedures. On December 26, 2007, the court issued an order modifying in part the F&R's so that terminating sanctions were not applied as recommended but adopting the Magistrate Judge's recommendation for monetary sanctions against Little. The monetary sanctions were assessed to compensate Defendants for costs and attorney fees resulting from Little's failure to timely provided notice of his inability to attend scheduled depositions. In the court's order of December 26, 2007, the court noted that where, as here, the failure of a party or their attorney to attend a deposition is not substantially justified, the court is obliged to impose monetary sanctions to compensate both costs and attorney fees occasioned by the unjustified non-compliance. Fed. Rule Civ. Pro. 37(d).

Little requests that the court modify or vacate its prior order awarding monetary sanctions based on Little's present inability to pay. The court, having previously found Little's non-compliance with discovery procedures was substantially not justified, has no legal basis for any modification to its prior order. As noted, the imposition of monetary sanctions in such circumstances to compensate for unnecessary costs and attorney fees pursuant to Rule 37(d) is mandatory. While the parties are free to make whatever accommodations they will, the court has no choice but to deny Little's request.

Little's request to vacate or modify the court's order of December 26, 2007, imposing of monetary sanctions is hereby DENIED.

IT IS SO ORDERED.

20090112

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