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John Kent v. City of Sacramento

September 15, 2011

JOHN KENT, PLAINTIFF,
v.
CITY OF SACRAMENTO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is defendant City of Sacramento's ("City")motion to compel plaintiff's attendance at his own deposition and for a monetary award of $525, which constitute reasonable expenses incurred by the City in moving to compel plaintiff's deposition.*fn1

The City noticed plaintiff's deposition seven times over a period of approximately two years, and plaintiff sought a continuance or postponement as to all but two of those noticed dates. Plaintiff failed to file a written opposition, or any response, to the City's motion to compel.

The court heard the City's motion to compel on its law and motion calendar on September 15, 2011. Attorney Michael A. Fry appeared on behalf of the City. Plaintiff, who is proceeding without counsel, appeared and represented himself at the hearing despite having not filed any response to the motion to compel. The undersigned has considered the City's motion, the parties' oral arguments, and appropriate portions of the record in this case and, for the reasons stated below, grants the City's motion to compel. As noted at the hearing, plaintiff shall attend and participate in his deposition on October 4, 2011, commencing at 10:00 a.m., at the Office of the City Attorney for the City of Sacramento. And although it presents a very close call, the undersigned denies the City's request for an order requiring plaintiff to pay $525 in reasonable expenses to the City. However, if plaintiff fails to attend his deposition or otherwise cooperate in regards to his deposition, the undersigned invites the City to file a motion to involuntarily dismiss plaintiff's entire case pursuant to Federal Rule of Civil Procedure 41(b) and this court's Local Rules 110 and 183(a).

I. BACKGROUND

Plaintiff filed his Second Amended Complaint on May 27, 2008 (Dkt. No. 8). On December 30, 2009, the magistrate judge previously assigned to this case entered a Status (Pretrial Scheduling) Order, which requires the parties to complete discovery in this case on or before October 14, 2011. (Status (Pretrial Scheduling) Order at 4, Dkt. No. 46.)

On April 7, 2010, the City noticed plaintiff's deposition for May 14, 2010. (Fry Decl. ¶ 3 & Ex. A.) The City represents that plaintiff was "unable to attend" his scheduled deposition, so the deposition was rescheduled. (Fry Decl. ¶ 3.)

On April 19, the City noticed plaintiff's deposition for June 17, 2010. (Fry Decl. ¶ 4 & Ex. B.) As with the first scheduled date, the City represents that plaintiff was "unable to attend" the deposition, which resulted in the rescheduling of the deposition. (Fry Decl. ¶ 4.)

On June 8, 2010, the City noticed plaintiff's deposition for July 29, 2010. (Fry Decl. ¶ 5 & Ex. C.) The City only represents that "[t]his deposition also had to be rescheduled," but provided no reason for the rescheduling of the July 29, 2010 deposition. (See Fry Decl. ¶ 5.) Plaintiff clarified at the hearing that he did not "prefer" to testify at his deposition on this date because he had a "final exam" on or around the proposed date.

On June 15, 2010, the City noticed plaintiff's deposition for August 5, 2010. (Fry Decl. ¶ 6 & Ex. D.) The City represents that this deposition "had to be continued at the request of Plaintiff." (Fry Decl. ¶ 6.)

On September 29, 2010, the City noticed plaintiff's deposition for October 20, 2010. (Fry Decl. ¶ 7 & Ex. E.) The City represents that, as with several of the previously scheduled depositions, plaintiff was "unable to attend." (Fry Decl. ¶ 7.)

On October 19, 2010, the City noticed plaintiff's deposition for December 13, 2010. (Fry Decl. ¶ 8 & Ex. F.) The City canceled this deposition because of its attorney's scheduling conflict. (Fry Decl. ¶ 8.)

On July 6, 2011, the City noticed plaintiff's deposition for July 25, 2011 (Fry Decl. ¶ 9 & Ex. G.) The City represents that on July 20, 2011, plaintiff called its counsel's office and informed the City's counsel's assistant that plaintiff could not attend his July 25, 2011 deposition. (Fry Decl. ¶ 10.) Apparently, plaintiff stated that he was in "summer school" and could not attend his deposition until at least August 15, 2011. (Id.) In response, the City's counsel sent a letter to plaintiff, dated July 21, 2011, which chronicled the City's efforts to schedule plaintiff's deposition and notified plaintiff of the City's intention to file a motion to compel plaintiff's deposition. (Id. & Ex. H.) On July 28, 2011, the City, reasonably concerned that plaintiff would never participate in the taking of his deposition absent a court order, filed the pending motion to compel.

At the hearing, plaintiff offered some unacceptable excuses for his requests to continue or postpone of his deposition. Most of these excuses centered on some undocumented issue that arose with plaintiff's wisdom teeth, and plaintiff's preference that his ...


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