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Weiss v. City of Santa Rosa Police Department

United States District Court, N.D. California

April 10, 2017

TERRY L WEISS, Plaintiff,
v.
CITY OF SANTA ROSA POLICE DEPARTMENT, et al., Defendants.

          ORDER REGARDING DEFENDANTS' 3/7/17 JOINT LETTER; ORDER IMPOSING SANCTIONS ON PLAINTIFF TERRY L. WEISS RE: DKT. NO. 99

          KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE

         On February 28, 2017, Plaintiff Terry L. Weiss failed to appear at her noticed deposition in Santa Rosa, California. On March 7, 2017, Defendants filed a discovery letter seeking an order requiring Plaintiff to attend her videographed deposition, to pay the $936.25 in attorneys' fees and costs incurred when she failed to appear at the February 28, 2017 deposition, and to compel responses to Defendants' Request for Production of Documents (Set One). (Defs.' Letter, Dkt. No. 99 at 1-2.)

         On March 15, 2017, the Court issued an order to show cause to Plaintiff and ordered her to respond to the order to show cause and Defendants' discovery letter by March 31, 2017. (Order to Show Cause, Dkt. No. 100 at 1.) Plaintiff did not file a response.

         Upon review of the discovery letter, the Court finds this matter suitable for resolution without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, GRANTS Defendants' request to recover the $936.25 in fees and costs incurred in connection with Plaintiff's failure to appear at the February 28, 2017 deposition, DENIES the request to order Plaintiff's appearance at the March 14, 2017 deposition as MOOT, and GRANTS the request to compel responses to Defendants' Request for Production of Documents (Set One).

         I. BACKGROUND

         On April 10, 2015, Plaintiff Terry L. Weiss filed this action alleging violations of her civil rights against City of Santa Rosa, Tom Schwedhelm in his official capacity, and several officers, and the Sonoma County Sheriff's Office, the County of Sonoma, Sheriff Steve Freitas, and County Supervisor Efren Carrillo, related to Plaintiff's arrest and booking at the Sonoma County Main Adult Detention Facility. (Compl., Dkt. No. 1; Third Am. Compl., Dkt. No. 76.) The Sonoma County defendants were dismissed with prejudice on November 22, 2016. (Dkt. No. 86.)

         On November 2, 2016, Assistant City Attorney John Fritsch transmitted a cover letter to the Third Re-Notice of Taking Deposition, and advised plaintiff that her deposition would commence on December 6, 2016. (Defs.' Letter at 2.) On December 1, 2016, Mr. Fritsch received Plaintiff's response, dated November 16, 2016, in which she indicated that she would not comply with the December 6, 2016 deposition notice, but offered February 28, 2017 as a suitable alternative deposition date. Id. On December 28, 2016, Defendants served their Fourth Re-Notice of Taking Deposition by U.S. Mail. Id.

         On February 28, 2017, Plaintiff did not appear at the noticed deposition. (Defs.' Letter at 1.) On March 7, 2017, Defendants filed a discovery letter seeking an order requiring Plaintiff to attend her videographed deposition, pay the $936.25 in attorneys' fees and costs incurred due to her failure to appear at the February 28, 2017 deposition, and respond to Defendants' Request for Production of Documents (Set One), which was propounded in December 2016. (Defs.' Letter, Dkt. No. 99 at 1-3.) Prior to filing the letter, on March 1, 2017, Defendants emailed it to Plaintiff in an attempt to comply with the undersigned's standing order that discovery letters be jointly submitted, but Plaintiff did not respond. (Defs.' Letter at 3, Ex. C.)

         On March 15, 2017, the Court issued an order to show cause to Plaintiff to explain why she did not participate in the filing of the discovery letter, and ordered her to file a response to the letter to address why she did not appear at her February 28, 2017, and her positions pertaining to the relief requested. (Order to Show Cause, Dkt. No. 100.) Both responses were due on or before March 31, 2017, and Plaintiff was advised that the failure to file an opposition shall constitute consent to the granting of Defendants' requested relief, including sanctions to reimburse the costs incurred due to Plaintiff's prior nonappearance. Id. To date, Plaintiff has not filed a response nor has she filed any other documents in this case.

         II. DISCUSSION

         Defendants seek three forms of relief in their discovery letter: 1) an award of attorneys' fees and costs incurred in connection with Plaintiff's failure to appear at the February 28, 2017 deposition; 2) an order compelling Plaintiff's attendance at deposition on March 14, 2017; and 3) an order compelling responses to Defendants' Request for Production of Documents (Set One).

         A. Defendants are entitled to attorneys' fees and costs

         A court must award fees and costs caused by a party's failure to appear for deposition, unless the failure was substantially justified or other circumstances make an award unjust. Fed.R.Civ.P. 37(d)(1)(A)(i); 37(d)(3) (emphasis added). “‘[T]he failure to appear need not be willful, ' and the court has discretion in deciding whether sanctions should be imposed.” Jefferson v. Cnty. of Napa, No. C 03-5031 SI, 2007 WL 3287847, at *1 (N.D. Cal. Nov. 5, 2007) (quoting Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985) (citing Advisory Committee Notes to Rule 37(d))).

         Defendants seek $936.25 in attorneys' fees and costs related to Plaintiff's failure to appear at the February 28, 2017 deposition. (Defs.' Letter at 2.) Plaintiff did not file a response to the joint letter, despite being given ample opportunity by the undersigned, so, as Plaintiff was advised, her failure to file an opposition constitutes consent to granting ...


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