United States District Court, D. Montana, Billings Division
CAROLYN S. OSTBY, Magistrate Judge.
Defendants have filed a Motion for Discovery Sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure seeking dismissal of the case based upon Plaintiff Deon Townsend's refusal to appear for properly noticed depositions. ECF 52. The Motion will be granted and this case dismissed.
Townsend is a prisoner proceeding without the assistance of counsel. He alleges Defendants violated his Fourth Amendment rights when they stopped and searched his vehicle on July 4, 2011.
A Scheduling Order was issued on February 10, 2014, setting a discovery deadline of October 6, 2014, and requiring dispositive motions be filed on or before November 6, 2014. ECF 22. Defendants scheduled Townsend's deposition for September 26, 2014, and arranged to have Fisher Court Reporting transcribe the deposition. ECF 44 at 2. Defendants notified Townsend of the deposition by letter and a Notice of Deposition dated September 9, 2014. ECF 44-1 at 1-2. Townsend responded by letter dated September 17, 2014, objecting to the deposition because there was a "potential Fed.R.Civ.P. 28(c) financial interest' by Fisher Court Reporting." ECF 44-2 at 1. Townsend indicated that he would consent to a deposition by written question. Upon receipt of Townsend's letter, Defendants cancelled the scheduled deposition and filed a motion to compel on September 23, 2014. ECF 43. Townsend filed a "Motion to Terminate Oral Examination to Exercise Depositions upon Written Questions" on September 25, 2014. ECF 45.
The Court granted Defendants' Motion to Compel and denied Townsend's Motion to Terminate. See Order dated 10/15/2014(ECF 47). The Court specifically found that Townsend provided no valid grounds upon which to object to the taking of his deposition and that, by filing this action, Townsend subjected himself to any of the methods of discovery set forth in the Federal Rules of Civil Procedure. The Court reopened discovery until November 6, 2014, for the sole purpose of allowing Defendants to take Townsend's deposition by oral examination. ECF 47.
On October 16, 2014, Defendants sent Townsend a Notice of Deposition scheduling Townsend's deposition at Crossroads Correctional Center for October 24, 2014, at 9:00 a.m. ECF 53: Defendants' Brief at 2. Townsend did not file any objection to the notice of deposition or a motion for protective order. Instead, he filed a Motion for Partial Summary Judgment (with no supporting brief) on October 24, 2014, a Statement of Undisputed Facts on October 27, 2014, and a Declaration in Support of his Motion for Partial Summary Judgment on October 28, 2014. ECF 48, 49, 50.
When Counsel for Defendants appeared at Crossroads for Townsend's deposition, Townsend refused to appear for his deposition. Instead, the prison staff delivered to Defendants a note from Mr. Townsend stating:
Pursuant to the honorable Courts' Order, I respectfully exercise my Fifth Amendment right to remain silent and submit PRIVILEGED INFORMATION as my only answer to all Deposition questions; the cause is my recent submission for Partial Summary Judgment - the merit of the content disqualifies my participation in order to not jeopardize any privileged information, or violate my constitutionally protected right to Due Process.
I thank you for your time to review my position.
ECF 53-1 at 7.
Defendants incurred a total of $2, 559.23 for counsel's trip to Shelby. ECF 53-1 at 2: Kimmet Affidavit, ¶ 6. On November 6, 2014, Counsel for Defendants spoke with Townsend in an effort to comply with the meet-and-confer requirements of Local Rule 26(c) prior to filing the motion for sanctions. On that call, Townsend represented that he would comply with the Court's prior Order and make himself available for an oral deposition. ECF 53-1 at 3: Kimmet Affidavit, ¶7.
Two provisions of the Federal Rules of Civil Procedure authorize the imposition of sanctions in the circumstances presented by this case. First, Rule 37(b)(2)(A) provides that if a party fails to obey an order to provide or permit discovery, the court may issue further just orders including dismissal. Fed.R.Civ.P. 37(b)(2)(A)(v). Second, Rule 37(d)(1) provides that the Court may, on motion, order sanctions if a party fails, after being served with proper notice, to appear for their deposition. Fed. R. Civ. P 37(d)(1)(A)(I); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (stating that sanctions including dismissal, may issue for a complete or serious failure to respond to discovery, such as a failure to appear for a deposition, even absent a court order compelling discovery). "Sanctions ...