FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's renewed request for terminating and monetary sanctions.
On April 29, 2009, defendant Palmer noticed plaintiff's deposition for June 22, 2009. When plaintiff refused to submit to the deposition, on July 10, 2009 defense counsel filed a motion to compel plaintiff's participation in the deposition. (Doc. No. 44.) By order filed August 20, 2009, the court granted defendant's motion to compel, and plaintiff's deposition was re-noticed for September 18, 2009. (Doc. No. 49.) However, when defense counsel attempted to take plaintiff's deposition at that time, plaintiff refused to participate once again. According to the brief deposition transcript, plaintiff objected to the deposition on the ground that the court's August 20, 2009 order requiring him to participate in the deposition was not final because he had filed a motion for reconsideration of the order. (See Doc. No. 50.)
On September 29, 2009, the assigned district judge denied plaintiff's motion for reconsideration. (Doc. No. 51.) On October 15, 2009, defense counsel filed a motion for terminating sanctions based upon plaintiff's failure to submit to a deposition. (Doc. No. 52.) By order filed February 26, 2010, the court denied defendant's motion without prejudice, but again ordered plaintiff to cooperate in the taking of his deposition by defense counsel. (Doc. No. 62.) Moreover, the court strongly cautioned plaintiff that any further refusal to cooperate with defense counsel in the taking of his deposition would be viewed as dilatory and would result in a recommendation that this action be dismissed. (Id.)
On March 3, 2010, the assigned district judge issued an order denying plaintiff's motion for certification of an interlocutory appeal filed October 16, 2009. (Doc. Nos. 54 & 64.) In this regard, the assigned district judge found no controlling question of law at issue and no substantial grounds for a difference of opinion as to whether plaintiff should be required to submit to a deposition.
Defendant's counsel once again noticed plaintiff's deposition, this time for April 20, 2010. Despite the court's orders requiring plaintiff to cooperate with defense counsel in the taking of his deposition, on March 11, 2010 plaintiff filed a notice with the court indicating his intent to once again refuse to participate in the scheduled deposition. (Doc. No. 66.) Accordingly, on March 16, 2010, defense counsel filed the pending renewed motion for terminating and monetary sanctions. Defense counsel also re-noticed plaintiff's deposition for a fourth time, this time for May 18, 2010. On May 6, 2010, plaintiff filed yet another notice with the court, declaring his refusal to participate in the scheduled deposition. (Doc. No. 70.)
DEFENDANT PALMER'S RENEWED MOTION FOR SANCTIONS
In defendant's renewed motion for terminating and monetary sanctions, defense counsel argues that plaintiff continues to refuse to be deposed, despite multiple court orders requiring him to do so. Moreover, defense counsel maintains that counsel has incurred unnecessary costs in attempting to obtain plaintiff's deposition. Accordingly, defense counsel argues that plaintiff's bad faith in repeatedly refusing to submit to deposition warrants terminating sanctions and either full or partial reimbursement of the $3,416.83 in costs incurred as a result of his conduct. (Def.'s Mem. of P. & A. at 1-5, Exs. A & B.)
II. Plaintiff's Opposition
In his opposition to the pending motion, plaintiff argues that defendant's request to depose him is "merely a wasteful procedure engaged in by [defendant] to delay trial." (Pl.'s Opp'n at 2.) Plaintiff contends that the information defendant seeks can be obtained through "more convenient and less expensive method[s]" and that his deposition should therefore not be taken and the motion for sanctions should be denied. (Id.)
In reply, defense counsel dismisses plaintiff's argument that other discovery methods should be employed to obtain information from plaintiff. Defense counsel also reiterates that plaintiff's repeated failure to participate in his deposition should result in the dismissal of this action. (Def.'s Reply at 1-2.)
On May 26, 2010, defense counsel filed a supplemental declaration in support of defendant's renewed motion for terminating and monetary sanctions. Therein, defense counsel details her most recent attempt to depose plaintiff. According to defense counsel, on May 18, 2010, counsel received a call from the Litigation Coordinator at California State Prison Solano, who stated that plaintiff had changed his mind and had agreed to ...