The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTIONS FOR TERMINATING SANCTIONS BE GRANTED
OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations on Defendants' Motions for Terminating Sanctions
This is a civil rights action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Craig Kaiser Garrett, a former state prisoner proceeding pro se and in forma pauperis. This action is proceeding on Plaintiff's amended complaint, filed March 27, 2007, against Defendants Sweeney, McNutt, and Salcido for retaliation, use of excessive force, and conspiracy, and against Defendant Patel for denial of medical care. Pursuant to the scheduling order issued on December 18, 2008, the deadline for the completion of discovery was August 19, 2009. Pending before the Court are Defendants' two motions for terminating sanctions, filed on June 5, 2009, and on August 18, 2009. Plaintiff did not file a response to either motion. Local Rule 78-230(m).*fn1
II. Failure to Appear for Deposition Scheduled on May 29, 2009
On February 20, 2009, Defendants served a Notice of Taking of Plaintiff's Deposition with Production of Documents. Fed. R. Civ. P. 30(b)(1). (Doc. 57-4, Motion.) Plaintiff failed to appear for his April 14, 2009, deposition, which was subject to a separate motion to compel. (Doc. 54, Motion.) On April 28, 2009, Plaintiff called Defendants' counsel and requested that his deposition be rescheduled for May 29, 2009. (Doc. 57-3, Igra Dec., ¶9; Doc. 57-8.) Plaintiff represented that he intended to file some motions, and the parties agreed that unless Plaintiff was relieved of his obligation to appear by the Court, Plaintiff would appear for his deposition in Sacramento, California with the documents requested by Defendants. (Igra Dec., ¶9.)
On May 26, 2009, Plaintiff left a voicemail message for Defendants' counsel informing her that it was likely he would not appear for his deposition. (Id., ¶11.) Counsel called Plaintiff on May 27, 2009, and he represented that he filed a motion requesting payment of costs for his travel to Sacramento and for a postponement. (Id., ¶¶11, 12.) Counsel informed Plaintiff that no such motion had been filed, per the Court's electronic records, and he stated he understood and hoped an order would issue prior to May 29. (Id., ¶12.)
Plaintiff did not appear for his deposition on May 29, 2009, and did not contact Defendants' counsel to notify her that he was not going to appear, resulting in a cost of $259.95 for the court reporter. (Id., ¶14.) Defendants seek dismissal of this action as a sanction.
III. Failure to Serve Discovery Responses
On July 1, 2009, Defendants served Plaintiff with a request for the production of documents and interrogatories. Pursuant to the Court's discovery order, Plaintiff's responses were due on or before August 17, 2009, plus three days for mailing. Fed. R. Civ. P. 6(a)(1),(d). Although Defendants' motion was premature by a few days, Plaintiff did not oppose the motion or otherwise file any document with the Court. Therefore, it is reasonable to conclude that no discovery responses were received between August 18, 2009, and August 20, 2009, and the Court will consider Defendants' motion.
IV. Availability of Terminating ...