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Nilon v. Natural-Immunogenics Corp.

United States District Court, S.D. California

July 31, 2014

ANDREW NILON, individually and on behalf of all other similarly situated, Plaintiff,
v.
NATURAL-IMMUNOGENICS CORP.; and DOES 1-25, Inclusive, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL [ECF NO. 49.]

BERNARD G. SKOMAL, Magistrate Judge.

I. INTRODUCTION

Pending before the Court is Defendant's motion to compel class representative, Plaintiff Andrew Nilon, to attend his deposition and produce documents described in his second amended notice of deposition. [ECF No. 49.] The motion seeks monetary sanctions for Plaintiff's failure to appear at his deposition, previously scheduled for May 16, 2014. Id. at 11. Defendant also requests that the Court: (1) order Plaintiff to supplement his interrogatory responses; and (2) deem admitted any late responses to Defendant's requests for admission. Id. at 7-9. The Court has considered the parties' briefs and exhibits thereto and GRANTS IN PART and DENIES in part Defendant's motion to compel. [ECF No. 49.]

II. FACTUAL BACKGROUND

A. Defendant's Attempts to Notice The Deposition of Lead Plaintiff Andrew Nilon

1. May 3, 2013, Deposition Date

On April 18, 2013, Defendant served a Notice of Deposition on Plaintiff, which scheduled the deposition for May 3, 2013 at 10:00 a.m. in Mission Viejo, California. [ See Exhibit C to Def.'s Brief at ECF No. 49.] The May 3, 2013, date was a day chosen by Plaintiff's counsel. [ See Exhibit B to Def.'s Brief at ECF No. 49.] On April 24, 2013, Plaintiff's counsel notified Defense counsel that Plaintiff was unavailable for deposition on May 3, 2013 and provided additional dates for deposition including May 22, 2013. [ See Exhibit D to Def.'s Brief at ECF No. 49.]

2. May 22, 2013, Deposition Date

Defendant served a new Notice of Deposition on Plaintiff, which scheduled the deposition for May 22, 2013 at 10:00 a.m. [ See Exhibit E to Def.'s Brief at ECF No. 49.] On the day of the deposition, May 22, 2013, Plaintiff's counsel notified Defense counsel via email that Plaintiff would not be produced for deposition. [ See Exhibit F to Def.'s Brief at ECF No. 49.] Counsel for the Defendant noted Plaintiff's failure to appear on the record at the deposition.

3. February 7, 2014, Deposition Date

On January 3, 2014, Defendant served a First Amended Notice of Deposition on Plaintiff, which scheduled the deposition for February 7, 2014 at 10:00 a.m. in Mission Viejo, California. [ See Exhibit G to Def.'s Brief at ECF No. 49.] Plaintiff's counsel failed to produce Plaintiff for deposition on February 7, 2014.

4. May 16, 2014 Deposition Date

On April 29, 2014, Defendant served a Second Amended Notice of Deposition on Plaintiff, which scheduled the deposition for May 16, 2014 at 10:00 a.m. in Mission Viejo, California. [ See Exhibit A to Def.'s Brief at ECF No. 49.] On May 13, 2014, counsel for the Defendant received a letter from Plaintiff's counsel refusing to produce Plaintiff for the May 16th deposition. [ See Exhibit H to Def.'s Brief at ECF No. 49.]

5. The Parties' Meet-And-Confer Communications

On June 18, 2014, the parties were telephonically connected to each other's offices by the chambers staff of Judge Skomal due to their inability to find a common time to speak. The parties were instructed to meet-and-confer about their discovery dispute as is required under the local rules and chambers rules. [ECF Nos. 46-47.] After meeting and conferring telephonically, the parties were unable to agree on the necessity of a deposition for Plaintiff Andrew Nilon, and consequently contacted Judge Skomal's ...


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