The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge
ORDER (1) DENYING DEFENDANT'S EX PARTE MOTION FOR DISCOVERY SANCTIONS
INCLUDING ISSUE PRECLUSION AND DISMISSAL OF ACTION FOR
PLAINTIFF'S FAILURE TO ATTEND
DEPOSITION, (2) SETTING DATE CERTAIN FOR PLAINTIFF'S DEPOSITION,
(3) RESETTING DATES, AND (4) DENYING PLAINTIFF'S MOTION TO STRIKE
[ECF Nos. 13, 17]
Currently before the Court is Defendant's January 2, 2013 Motionfor
Discovery Sanctions Including Issue Preclusion and Dismissal of Action
for Plaintiff's Failure to Attend Deposition [ECF No. 13 (Def.'s
Mot.")] and Plaintiff's Motion to Strike Defendant's Ex Parte
Motion for Discovery Sanctions, Including Issue Preclusion and
Dismissal of Action for Plaintiff's Failure to Attend Deposition 2013,
which the Court is interpreting as an opposition to Defendant's
motion. ECF No. 17 ("Oppo.").
For the reasons set forth below, the Court RECOMMENDS that both Plaintiff and Defendant's motions be DENIED.
On November 7, 2011, Plaintiff David Johnson, currently detained at George Bailey Detention Facility in San Diego, California, and proceeding pro se , filed a civil rights action pursuant to 42 U.S.C. § 1983. ECF No. 1. Plaintiff claims a San Diego Police Officer used excessive force during his arrest in April 2011. Id. Defendant answered the complaint through his counsel, Mr. John Riley, on June 5, 2012. ECF No. 7. On June 6, 2012, the Court issued an order finding an Early Neutral Evaluation inappropriate and setting various discovery and pretrial deadlines. ECF No. 8. In the order, the Court warned the parties that "failure to comply with [any] discovery order of the court may result in the sanctions provided for in Fed. R. Civ. P. 37." at 2. In accordance with the order, the Court convened a Mandatory Settlement Conference ("MSC") on October 19, 2012 at 1:30 p.m. ECF No. 9. Mr. Riley appeared in person at the MSC with the appropriate representatives from the City of San Diego and Officer Garren and Plaintiff appeared telephonically. At the beginning of the MSC, Plaintiff informed the Court that he was unaware of the MSC and that although no counsel had entered an appearance on the docket, he was represented by counsel, Mr. Raymond Pacello. The Court attempted to call Mr. Pacello during the conference, but he did not answer and the Court left a message asking Mr. Pacello to return its call. The Court then informed Plaintiff that he needed to contact Mr. Pacello and verify that he was representing Plaintiff in this matter. Because Plaintiff claimed to be represented, the Court ended the MSC. After the MSC, the Court issued an Order setting an additional MSC for January 28, 2013. ECF No. 10. Mr. Pacello did not return the Court's call and did not enter an appearance on behalf of Plaintiff.
On December 11, 2012, Mr. Riley filed an ex parte motion to schedule the deposition of Plaintiff or, in the alternative, to extend the fact discovery cut-off date. ECF No. 11. In support, Mr. Riley stated that after the October 19, 2012 MSC, he left a message for Mr. Pacello asking about his representation of Plaintiff and Mr. Pacello did not respond. Id. at 2. Mr. Riley noticed the deposition of Plaintiff for December 5, 2012 and appeared at the detention facility to depose Plaintiff with City Investigator Maggio, a court reporter, and a videographer. Id. Plaintiff appeared and refused to be deposed since he claimed to have legal representation. The City Investigator called Mr. Pacello from the detention facility on December 5, 2012. Id. Mr. Riley stated that Mr. Pacello informed him that he was representing Plaintiff and that he had been too busy to call the City before the noticed deposition. Id. Despite several requests from Mr. Riley to Mr. Pacello after the attempted deposition asking Mr. Pacello to file a substitution of counsel and provide a day for Plaintiff's deposition, Mr. Pacello did not respond other than to say that he was in trial and very busy. Id. In light of the lack of response from Mr. Pacello and the failed deposition attempt, Mr. Riley requested that the Court set a date certain for Plaintiff's deposition.
The Court granted Defendant's request and ordered that Plaintiff's deposition be taken on December 19, 2012. ECF No. 12 at 2. In addition, the Court ordered Mr. Pacello to either enter an appearance or inform Plaintiff, the Court, and Mr. Riley if he was not going to be representing Plaintiff. Id. at 2-3. Mr. Riley did neither. Finally, the Court warned Plaintiff that "[b]ecause Mr. Pacello ha[d] not officially appeared on behalf of Plaintiff despite having plenty of time and notice to do so, and because this case has been pending for more than one year, the case must proceed forward with Plaintiff representing himself." Id. at 2, n. 1. Defendant appeared for the December 19, 2012 deposition and Plaintiff refused to participate without his counsel, Mr. Pacello. Def.'s Mot. at 3.
On January 2, 2013, Defendant filed the instant ex parte motion for discovery sanctions including issue preclusion and dismissal of action for Plaintiff's failure to attend deposition. Def.'s Mot. In support, Defendant provides a brief history of the case and states that "Plaintiff's failure to submit to deposition on two occasions warrants a sanction whereby Plaintiff is precluded from offering evidence contrary to [Defendant's] defense of reasonable use of force. Similarly, a sanction is warranted whereby Plaintiff's complaint is stricken and this lawsuit dismissed." Def.'s Mot. at 4.
On January 25, 2013, Plaintiff filed an opposition to Defendant's motion. Oppo. In support, Plaintiff states that he "was mislead by . . . Raymundo Pacello, that he had entered an appearance in this case and was representing the Plaintiff." Id. at 3-4. Plaintiff further states that he would have complied with the orders of this Court "had [he] known [he] was not represented by Mr. Pacello in this case" and that he would have allowed "the Deputy City Attorney to take my deposition." Id. at 5. Plaintiff requests that the Court strike Defendant's motion and set a date certain for his deposition and a MSC. Id. at 4.
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 [ECF No. 8], the Court warned the parties 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. 8 at 2. Possible Rule 37 sanctions range from "prohibiting the disobedient party from supporting or opposing designated claims or defenses" to payment of expenses and attorney's fees to dismissal of the action in whole. Fed. R. Civ. P. 37(b)(2)(A).
In light of the confusion surrounding Plaintiff's representation and Plaintiff's assurances that he will participate in the deposition and a MSC, the Court finds that the imposition of sanctions against Plaintiff would be unjust and declines to impose sanctions at this time.*fn1 Accordingly, Defendant's motion is DENIED.*fn2 However, given the delay due to the missed depositions and Mr. Pacello's misrepresentations, the Court finds it appropriate to set a date for Plaintiff's deposition and for a MSC and to reset the remaining ...