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Luckey v. Visalia Unified School District

United States District Court, E.D. California

December 30, 2014

TIMOTHY LUCKEY, Plaintiff,
v.
VISALIA UNIFIED SCHOOL DISTRICT, Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO COMPEL ECF NO. 42

STANLEY A. BOONE, Magistrate Judge.

On December 8, 2014, Defendant Visalia Unified School District ("Defendant" or "VUSD") filed a motion to compel Plaintiff Timothy Luckey ("Plaintiff") to submit to an oral deposition. (ECF No. 42.) Defendant also seeks sanctions for Plaintiff's failure to appear at two previously noticed depositions.

Plaintiff's opposition was due on December 24, 2014. To date, Plaintiff has not filed any opposition to Defendant's motion to compel. Accordingly, pursuant to Local Rule 230(c), Plaintiff is not entitled to be heard in opposition to Defendant's motion at oral argument. Therefore, the Court finds it appropriate for the motion to be submitted upon the record and briefs on file and the hearing set for January 7, 2015 will be vacated. See Local Rule 230(g). The parties shall not appear at that time.

For the reasons set forth below, the Court grants Defendant's motion to compel.

I.

BACKGROUND

The operative complaint in this action is the Third Amended Complaint filed by Plaintiff on September 26, 2013. (ECF No. 12.) Plaintiff is proceeding pro se in this action. Plaintiff alleges that his rights under Title VII of the Civil Rights Act of 1964 (codified as 42 U.S.C. ยง 2000e, et seq.) were violated by Defendant because Plaintiff was subjected to differential treatment based upon his race (black) and his sex (male). Visalia Unified School District is the sole defendant in this action. Plaintiff alleges that he was employed at Crestwood Elementary School within VUSD. Plaintiff contends that he was segregated and isolated from other staff and students by Jim Sullivan, the principal at Crestwood Elementary School and such treatment was based on Plaintiff's race and sex. Plaintiff complained to Jim Sullivan and to human resources about the differential treatment, but was reprimanded for his complaints. Plaintiff was given reduced work hours and eventually terminated, allegedly because Plaintiff threatened to file an EEOC complaint regarding the mistreatment.

Defendant filed the present motion to compel on December 8, 2014. (ECF No. 42.) Defendant contends that they duly noticed a deposition of Plaintiff scheduled to occur on September 16, 2014. This deposition was later rescheduled to October 13, 2014. Plaintiff did not appear for his own deposition on October 13, 2014.

Defendant sent a letter to Plaintiff regarding the failure to appear and received no response. Defendant scheduled another deposition for November 10, 2014. Plaintiff did not appear at the second deposition. Defendant sent a letter to Plaintiff informing Plaintiff that the present motion to compel would be forthcoming. Defendant received no response to this letter. Defendant now seeks an order compelling Plaintiff's attendance at a deposition and for sanctions.

II.

LEGAL STANDARDS FOR DEPOSITIONS AND MOTIONS TO COMPEL

Federal Rule of Civil Procedure 30 governs oral depositions and states, in pertinent part:

(a) When a Deposition May Be Taken.
(1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2).[1] The deponent's ...

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