United States District Court, D. Nevada
ORDER (DOCKET NO. 238)
J. KOPPE United States Magistrate Judge.
before the Court is Plaintiff's motion for sanctions
against Defendant Vincent Tessier (“Defendant”).
Docket No. 238. Defendant filed a response in opposition and
Plaintiff filed a reply. Docket Nos. 240, 250. The Court
finds this matter properly resolved without oral argument.
See Local Rule 78-1. For the reasons discussed
below, the motion is GRANTED in part.
pending motion seeks to recover attorneys' fees and costs
arising from Defendant's failure to attend a duly noticed
deposition on December 15, 2016. See, e.g., Docket
No. 238 at 2. Plaintiff's counsel initially approached
the subject of scheduling Defendant's deposition sometime
between December 5 and 15, 2016, by e-mailing Defendant's
former counsel on September 27, 2016. Docket No. 238-2 at 2.
The same day, one of Defendant 's former attorneys,
Patrick Byrne, responded that he had “passed
along” Plaintiff's counsel's request regarding
Defendant's availability for a deposition during that
time frame. Docket No. 238-3 at 2. Mr. Byrne also notified
Plaintiff's counsel that his firm intended to withdraw
from the case, which occurred shortly thereafter.
Id.; Docket No. 149. Neither Defendant nor his
former counsel provided Plaintiff's counsel information
about Defendant's availability during the specified time
frame. Docket No. 238 at 3.
December 2, 2016, the Court issued an order requiring a
co-defendant to appear for her deposition no later than
December 16, 2016. Docket No. 169. Plaintiff's counsel
therefore e-mailed Defendant and his co-defendant to inquire
about their availability for depositions on consecutive dates
through December 16, 2016. Docket No. 238-4 at 2.
December 6, 2016, Plaintiff served a deposition notice on
Defendant setting his deposition for 10:00 a.m. on December
15, 2016 in Las Vegas, Nevada. Docket No. 238 at 3. The same
day, Defendant e-mailed Plaintiff's counsel stating that
he would not be available to attend a deposition before
January 9, 2017. Docket No. 238-6 at 2. Plaintiff's
counsel responded that such a delay was not acceptable, but
that counsel could accommodate other dates in December.
Docket No. 238-7 at 2. On December 7, 2016, Defendant replied
that he would be unavailable during the last two weeks of the
year because he would be busy and traveling. Docket No. 238-8
at 2. Plaintiff's counsel then reiterated his willingness
to accommodate a different date in December rather than
delaying the deposition. Id. Plaintiff's counsel
further reminded Defendant that he had initially approached
Defendant about scheduling the deposition two and a half
months before. Id.
December 8, 2016, Defendant e-mailed Plaintiff's counsel
stating that he “received medical results yesterday and
they are not good” and that he was “not currently
in a psychological state to be deposed.” Docket No.
238-10 at 2. Plaintiff's counsel responded that, while he
understood Defendant's situation, the deposition must
move forward on one of two days in December. Docket No.
238-11 at 2.
December 15, 2016, less than one hour before his deposition
was to begin, Defendant notified Plaintiff's counsel by
e-mail that he was “at urgent care for a medical
emergency” and would therefore be unable to attend the
deposition. Docket No. 238-12 at 2. Plaintiff's counsel
responded by offering to take Defendant's deposition the
next day, while also reserving the right to pursue sanctions
for the nonappearance. Docket No. 238-13 at 2. Defendant did
not appear for his deposition on either day. See
Docket No. 238 at 4-5.
ENTITLEMENT TO RECOVER EXPENSES
may impose sanctions for the failure of a party or a
party's officer, director or managing agent to appear for
his deposition. Fed.R.Civ.P. 37(d)(1)(A)(I). Sanctions that
may be imposed include those listed in Rule
37(b)(2)(A)(i)-(vi), which include case-dispositive
sanctions.Fed. R. Civ. P. 37(d)(3). Additionally,
courts must award reasonable expenses, including
attorneys' fees, unless the failure to appear was
substantially justified or other circumstances make an award
of expenses unjust. Id. The party facing sanctions
bears the burden of establishing substantial justification or
circumstances making an award of expenses unjust. Hyde
& Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994)
(internal citation omitted). A finding of bad faith is not a
prerequisite for imposing sanctions under Rule 37(d),
although a lack of bad faith may be considered in determining
whether the imposition of sanctions would be unjust.
instance, rather than seeking case-dispositive sanctions,
Plaintiff seeks to recover attorneys' fees and costs
arising from Defendant's failure to appear at his
December 15, 2016, deposition. See, e.g., Docket No.
238 at 2. Plaintiff submits that Defendant's behavior was
not substantially justified because of his failure to appear
despite numerous communications from Plaintiff's counsel,
his inconsistent reasons for avoiding being deposed,
inconsistencies in a doctor's note he provided to
Plaintiff and the Court, and the fact that he was only
treated for abdominal pain. Docket No. 238 at 5-7. Plaintiff
submits that these factors cast doubt on the allegedly urgent
nature of Defendant's medical condition on the day of the
deposition. Id. In response, Defendant submits that
his health issues began weeks before he received
Plaintiff's deposition notice, Plaintiff's counsel
would not reasonably accommodate his needs in scheduling the
deposition, and Plaintiff's December 2, 2016 deposition
notice did not provide sufficient warning of the deposition.
Docket No. 240 at 3-4.
Court finds that Defendant's failure to attend his
deposition was not substantially justified and that an award
of fees and costs is not unjust in this instance.
Plaintiff's counsel made clear far in advance their
intention to depose Plaintiff between December 5 and 15,
2016, by e-mailing Defendant's former counsel on
September 27, 2016. Docket No. 238-2 at 2. Moreover,
Defendant does not dispute the fact that his former counsel
advised him of that e-mail. See, e.g., Docket No.
238-11 at 3. Additionally, as Plaintiff submits, Defendant
provided a series of inconsistent reasons for resisting being
deposed. See Docket No. 238-9 at 2-3 (citing, on
December 7, 2016, end of year travel as a reason not to
attend the deposition); Docket No. 238-10 at 2 (stating, on
December 8, 2016, that vague psychological issues prevented
him from being deposed); Docket No. 238-12 at 2 (notifying
Plaintiff's counsel, less than one hour before the duly
noticed deposition, that he was at urgent care). Further, the
treatment notes from Defendant's urgent care visit refer
to abdominal pain and constipation. Docket No. 184-1 at 19.
Abdominal pain bears no relation to the alleged psychological
issues that Defendant mentioned days before his visit to the
urgent care center and the treatment provider's notes
suggest that his medical condition was not necessarily as
urgent as he submits. See Id. Defendant has also
provided a puzzling medical certificate stating that he was
unable to work from December 15 to December 17, 2016, yet was
also able to return to work on December 15, 2016. Docket No.
240 at 15.
general resistance to fulfilling his discovery obligations in
the instant case also undermines any assertion that he was
substantially justified in failing to attend his deposition.
As Plaintiff submits, Defendant did not respond to
Plaintiff's efforts to schedule the December 2016
deposition until he received the deposition notice. See,
e.g., Docket No. 238-8 at 2. Additionally, on January
20, 2017, the Court held a pretrial conference that was
necessitated by the repeated failure of Defendant and his
co-defendant to participate in the discovery process, which
included Defendant's failure to appear at the December
15, 2016 deposition. Docket No. 190 at 5-9; Docket No. 206.
In sum, the Court finds that Defendant's pattern of
evasion, inconsistent statements, and general conduct
throughout the discovery process demonstrate that his failure
to attend the December 15, 2016 deposition was not
substantially justified and that an award of fees and costs
is therefore reasonable in this instance. See, e.g.,
Peyman v. Rayan, 2011 WL 976925, at *1-*2 (D. Nev.
Mar. 18, 2011) (award of costs was “eminently
reasonable” where party canceled deposition at the last
minute due to a vague, inadequately explained illness and had
previously engaged in discovery misconduct).