The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge
(1) GRANTING IN PART DEFENDANTS' REQUEST FOR SANCTIONS, (2) SETTING NEW DISCOVERY DATES, AND (3) VACATING THE APRIL 15, 2011 SETTLEMENT CONFERENCE [ECF No. 25]
In 2010, Plaintiffs Julia Sorokin and Louis Bravo filed three complaints in the Southern District of California. In May, Plaintiffs filed a civil rights complaint against a number of individuals and entities involved in law enforcement in New York City. 10cv1153-WQH(BLM). In September 2010, Plaintiffs filed the instant civil rights complaint against a number of individuals and entities involved in law enforcement in San Diego. ECF No. 1. In the same month, Plaintiffs filed a complaint against Dow Jones, The Wall Street Journal and an individual. 10cv1861-WQH(BLM). In February 2011, the first and third cases were transferred to the Southern District of New York. As a result, only the instant case remains in the Southern District of California.
On December 6, 2010, after consulting with all parties, this Court issued a scheduling order setting discovery deadlines and requiring the parties to complete all discovery by July 1, 2011. ECF No. 13. In accordance with the Court's order, Defendants noticed the depositions of both Plaintiffs and served on Plaintiffs Requests for Production of Documents, Requests for Admission, and Special Interrogatories. ECF No. 25-2 at 3, Ex. B. Plaintiffs failed to appear for their depositions and failed to respond to any of the written discovery. As a result, Defendants were forced to file the instant motion for sanctions. ECF No. 25. Plaintiffs filed an untimely opposition, which this Court accepted on discrepancy. ECF Nos. 28 &29. In their opposition, Plaintiffs indirectly acknowledge that they have not complied with their discovery obligations but they argue that their "principle case" is in New York and that since the instant case is "technically" the same case as the one against the New York law enforcement entities, they should be excused from handling this case at this time. ECF No. 29 at 2-4. Plaintiff's arguments are without merit.
On February 28, 2011, the Court issued an order setting a briefing schedule to address the alleged discovery violations and set a court hearing at 9 a.m. on March 29, 2011. ECF No. 24. The Order explicitly required the parties to appear in person at the hearing and warned them that failure to comply with the Order could result in the imposition of sanctions. Id. Neither Plaintiff appeared at the hearing. Defense counsel appeared and the hearing was conducted without Plaintiffs. ECF No. 30.
Plaintiffs' Failure to Appear at Their Noticed Depositions
The Federal Rules of Civil Procedure state that a court may impose sanctions if "a party [...] fails, after being served with proper notice, to appear for that person's deposition[.]" Fed. R. Civ. P. 37(d)(1)(A)(i). Under Rule 37, a failure by a party to appear at their deposition will result in sanctions unless the failure "was substantially justified or other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(d)(3). Furthermore, in the Case Management Conference Order, the Court required Plaintiffs to contact defense counsel to finalize a date for their depositions and warned them that failure to comply with a "discovery order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37[.]" ECF No. 13. Possible Rule 37 sanctions range from payment of expenses and attorney's fees to dismissal of the action in whole. Fed. R. Civ. P.37.
In their motion for sanctions, Defendants explain that Plaintiffs' depositions initially were set for December 14, 2010. ECF. No. 25-1 at 2. During the telephonic Case Management Conference, Plaintiffs explained that Mr. Bravo may not be able to appear at the deposition, as he had a doctor's appointment. ECF No. 25-2 at 2. In light of Mr. Bravo's conflict, the Court ordered Plaintiffs to contact defense counsel, George Brewster, Jr., by December 9, 2010, to finalize their deposition date. ECF No. 13. In compliance with that order, Plaintiffs sent an e-mail to Mr. Brewster suggesting the dates of February 15, 16, or 18, 2011. ECF 25-2 at 2. After a brief exchange, Plaintiffs confirmed that they would be available on those dates. Id. Consequently, Defendants re-noticed the Plaintiffs' depositions for February 16, 2011, and served the notice by mail on December 14, 2010. Id. at 2-3. Mr. Brewster sent Plaintiffs an email reminder about their depositions on February 8, 2011. Id. at 3.
On February 15, 2011, the day before the depositions were scheduled to occur, Plaintiffs informed Mr. Brewster that they would not be attending. Id. Plaintiffs explained that they would be in New York, handling the two related cases that had been transferred there from this district.
Following this conversation, Mr. Brewster contacted the Court, notified Plaintiffs that the depositions were going forward the next day, and proceeded with the deposition as scheduled. at 3-4. Plaintiffs did not show and Mr. Brewster noticed their non-appearance. Id. at 4, Ex.
In their opposition to the sanction motion, Plaintiffs merely state that the two New York cases have "run into problems that have forced Plaintiffs Julia Sorokin and Louis A. Bravo to be physically present in New York" and that they have had difficulty sending mail and accessing their e-mail. ECF No. 29 at 2. Plaintiffs did not submit any evidence, including a declaration from either Plaintiff, to support their arguments. Plaintiffs also never explain why they could not appear in San Diego for their depositions on February 16th-the date they chose. Finally, Plaintiff's general assertions that it is difficult to handle cases in two districts and that they would prefer to resolve the cases in New York before handling this case do not justify Plaintiffs' complete failure to respond to discovery and to attend required court appearances in this district.*fn1
Plaintiffs also contend that they are "not avoiding participation in this action, since technically Sorokin v. Sheriff and Sorokin v. New York District Attorney's Office are the same case." ECF No. 29 at 3. The Court rejects Plaintiff's argument. While these cases may involve some related issues; they are not the same case. The cases assert different claims against different defendants and Plaintiffs must respond to discovery and participate in court appearances in each of the cases.
Accordingly, this Court finds that Plaintiffs knowingly, voluntarily and intentionally failed to appear at their properly-noticed deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). The Court also finds that Plaintiffs' failure to appear was not "substantially justified" and that there are no "other circumstances" that would "make an award of expenses unjust." ...