Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that in violation of the Eighth Amendment, defendants have not provided adequate medical care to treat his ongoing back/spinal problem and associated pain. Before the court is defendants' motion to compel plaintiff's deposition, request for monetary sanctions, and request to modify the scheduling order in this action. Plaintiff has not filed an opposition although he was granted an extension of time to do soon March 24, 2011, and was also advised in this court's August 2, 2011 order that defendants' motion to compel was pending and that he had not yet filed his opposition thereto.*fn1
I. Defendants' Motion to Compel
In their motion, defendants provide the following background. On December 16, 2010, defendants noticed plaintiff's deposition for February 8, 2011. (Mot. to Compel (MTC) at 1-2.) On February 8, 2011, defendants' counsel attempted to take plaintiff's deposition but plaintiff refused to cooperate in giving his deposition. Deputy Attorney General Jarhett Blonien asserts in his declaration that plaintiff did not attempt to contact him prior to the scheduled deposition nor did plaintiff in any way indicate to counsel in advance of February 8, 2011, that he did not intend to submit to the deposition. (Id., Decl. of Blonien at 1-2.) Rather, at the time set for his deposition, plaintiff merely explained that he was seeking representation and that he had been advised by counsel not to go forward with the deposition. (Id., Decl. of Blonien at 2.) Plaintiff also told Mr. Blonien that he was aware that he would be billed for the cost of the deposition, that he anticipated obtaining counsel in the next sixty-days, and that he would not be deposed without representation. (Id.)
Counsel for defendants provides the following accounting for his expenses incurred in the failed attempt to depose plaintiff, totaling $3,299.50: (1) four hours preparing for the deposition at a billing rate of $170.00 per hour, (2) eight and a half hours driving time from Sacramento to the California Substance Abuse Treatment Facility (SATF) in Corcoran and back to Sacramento, (3) mileage cost (463 miles at .50 cents per mile), (4) overnight stay at the Courtyard Marriott at a rate of $95, (5) meals in the amount of $40, (6) court reporter cost of $298, and (7) $510 for the additional three hours needed to prepare the motion to compel. (Id.)
Defendants request an order compelling plaintiff to attend his deposition, or in the alternative, an order terminating this action. (MTC at 2-3.) In support of this request defendants rely upon Rules 37(d) and 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure. Defendants also argue that plaintiff should be required to reimburse counsel for the costs associated with the failed attempt to depose plaintiff. (Id. at 3.) Defendants argue that under Rule 37(a)(5) of the Federal Rules of Civil Procedure, and a party who prevails on a motion to compel is entitled to reimbursement for expenses incurred, including reasonable attorney fees, unless there is substantial justification for the party's conduct or other circumstances that make the award unjust.
Finally, defendants request that this action be stayed until plaintiff has paid the court ordered sanctions. (Id. at 4.) Defendants also request a modification of the court's scheduling order issued on November 4, 2010. (Id.) In this regard, defendants request upon plaintiff's payment of monetary sanctions the scheduling order be modified in two ways. First, defendants request that the discovery deadline be extended for the sole purpose of allowing defendants to take plaintiff's deposition and to file another motion to compel and for sanctions, including dismissal of the action, in the event plaintiff again fails to cooperate in the taking of his deposition. (Id.) Second, defendants request that the current deadline for the filing of dispositive motions be vacated and a new deadline be set which allows them time to file such a motion after plaintiff's deposition is taken. (Id.)
Pursuant to the court's November 4, 2010 discovery and scheduling order, defendants were required to provide plaintiff with notice of his deposition "at least fourteen days before such a deposition[.]" (Doc. No. 14, ¶ 4 at 5.) Counsel for defendants represents that the notice of the deposition was served on plaintiff on December 16, 2010. Plaintiff's deposition was noticed for February 8, 2011. Accordingly, the court finds that plaintiff's deposition was properly noticed in compliance with the court's scheduling order.
Defendants' request for an order compelling plaintiff to attend and cooperate in the taking of his deposition will be granted pursuant to Rule 30(d)(2) of the Federal Rules of Civil Procedure. However, defendants' reliance on Rule 37(d) in support of their motion to compel and for sanctions is misplaced. Rule 37(d)(1)(A) provides:
Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if;
(i) a party . . . fails, after being served with proper notice, to appear for the person's deposition . . . .
The reporter's transcript of the proceedings on February 8, 2011, confirms that plaintiff appeared at his noticed deposition but declined to testify for the reasons he stated as follows:
[F]or the record, Attorney Steve Sanders is going to be representing Randall Houseman in the current case. And he informed me not to make statements on deposition at this time because he is not present. And he would be informing the court within 30 to 60 days. (MTC, Ex. A at 3.) Binding Ninth Circuit precedent requires that Rule 37(d) of the Federal Rules of Civil Procedure be strictly construed and cannot be found applicable under these circumstances since plaintiff did in fact appear at his deposition. Estrada v. Rowland, 69 F.3d 405, 406 (9th Cir. 1995) ("Estrada attended his deposition but refused to testify. This is not a 'failure to appear' for the purposes of Rule 37(d)."). The court also declines to impose the sanction of dismissal as provided for under Rule 37(b)(2)(A)(v) in connection with a failure to comply with a court ...