The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING DEFENDANT O'BRIAN'S MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND FOR SANCTIONS, REQUIRING PLAINTIFF TO PAY $150.00 WITHIN THIRTY DAYS, AND REQUIRING PLAINTIFF TO SHOW CAUSE WITHIN FIFTEEN DAYS WHY ATTORNEY'S FEES SHOULD NOT BE ASSESSED AGAINST HIM (Doc. 35)
Plaintiff Ruben Hernandez, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 18, 2007. This action is proceeding on Plaintiff's second amended complaint against Defendants Rutan, Rutan-Juliana, Phi, Bond, and O'Brian on Plaintiff's Eighth Amendment medical care claim. Defendants O'Brian and Phi have answered the second amended complaint and there is a scheduling order in place.
On November 15, 2011, Defendant O'Brien (Defendant) filed a motion seeking an order compelling Plaintiff's deposition and for sanctions. Fed. R. Civ. P. 37(d). Plaintiff did not file a response to the motion and he did not comply with the Court's order filed on December 1, 2011, in which he was directed to file a response within thirty days. Local Rule 230(l).
Plaintiff was required to attend his properly noticed deposition, Fed. R. Civ. P. 30, and his failure to attend his deposition subjects him to sanctions, including reasonable expenses caused by his failure to appear "unless the failure to appear was substantially justified or other circumstances make an award of expenses unjust," Fed. R. Civ. P. 37(d)(3).
Plaintiff's first deposition was properly noticed and it commenced at
Pleasant Valley State Prison on August 16, 2011. (Doc. 35, Motion, Ex.
A.) Due to Plaintiff's impending parole from prison, he had sent his
legal property home, and the parties agreed to continue the deposition
until after Plaintiff's parole. (Id., Ex. B.) Defendant subsequently
properly noticed Plaintiff's second deposition for November 9, 2011,
and served the notice on Plaintiff at Pleasant Valley State Prison and
at the residential address Plaintiff provided during the first
deposition, at which represented he would be living.*fn1
(Id., Ex. C.) Plaintiff failed to appear at his second
deposition and he failed to contact Defendant's counsel regarding the
deposition. (Id., Ex. D.) Defendant now seeks an order compelling
Plaintiff's deposition and for sanctions in the amount of $150.00 for
the court reporter and $637.50 in attorney's fees, totaling $787.50.
As Plaintiff failed to respond to Defendant's motion and failed to respond to the Court's order requiring him to respond, no showing of substantial justification or other circumstance which would avert the imposition of sanctions has been made. Fed. R. Civ. P. 37(d)(3). Defendant is entitled to an order compelling Plaintiff's deposition and to the costs incurred by Plaintiff's failure to attend his deposition, which is the $150.00 court reporter fee. Id. As the prevailing party on his motion to compel, Defendant is also entitled to the reasonable expenses incurred in preparing the motion. Fed. R. Civ. P. 37(a)(5). However, Plaintiff must be given notice and an opportunity to be heard on that issue. Id.
Accordingly, it is HEREBY ORDERED that:
1. Defendant's motion to compel and for sanctions, filed on November 15, 2011, is GRANTED;
2. Plaintiff is required to attend his deposition, should Defendant elect to re-notice the deposition, and the failure to do so will result in the imposition of additional sanctions;*fn2
3. Within thirty (30) days from the date of service of this order, Plaintiff is required to pay Defendant sanctions in the amount of $150.00, payable to the Office of the Attorney General of California and directed to counsel's address of record; and
4. Within fifteen (15) days from the date of service of this order, Plaintiff shall show cause why attorney's fees in the amount of $637.50 should not be assessed against him.