United States District Court, D. Arizona
JOHN Z. BOYLE, Magistrate Judge.
Pending before the Court is Defendants' Motion for Sanctions against Plaintiff. (Doc. 144.) Defendants also request the Court extend the discovery deadline by 60 days from the date of this Order. (Doc. 165.) For the reasons below, the Court will deny Defendants' Motion for Sanctions and grant their Motion for an Extension of the Discovery Deadline.
On September 15, 2014, Defendants noticed Plaintiff's deposition for September 30, 2014. (Doc. 118.) During the September 30, 2014 deposition, Plaintiff stated that he could not respond to many of the questions without referring to his notes. But, but when Defendants afforded Plaintiff the opportunity to retrieve his notes, he chose not to do so. Plaintiff failed to provide meaningful responses to many of the questions Defendants' counsel asked him. The parties contacted the Court during the deposition to address Plaintiff's responses; however Magistrate Judge Burns was not available at that time.
On September 30, 2014, Defendants filed a Motion for an enlargement of the deposition deadline, and to compel Plaintiff to participate in the deposition in good faith. (Doc. 122.) On October 2, 2014, the Court granted the Motions. (Doc. 125.) In its October 2, 2014 Order, the Court specifically advised Plaintiff that he "must attend the deposition in good faith and with all materials necessary to provide meaningful responses to questions regarding his healthcare prior to and during his incarceration with the ADC, and his contact and interactions with the Defendants."
On October 2, 2014, after receiving the Court's Order, Defendants filed an Amended Notice of Taking Telephonic Deposition, noticing Plaintiff's deposition for October 10, 2014. (Doc. 129.) On October 6, 2014, Plaintiff filed a Motion to Strike the Amended Notice of Deposition. (Doc. 131.) On October 8, 2014, Defendants filed a Response in Opposition to Plaintiff's Motion to Strike, along with a Motion for Expedited Ruling. (Doc. 135; Doc. 136.) On October 8, 2014, the Court denied Plaintiff's Motion Strike the Amended Deposition Notice. (Doc. 137.)
On October 10, 2014, the day of Plaintiff's rescheduled deposition, Plaintiff failed to appear and participate in the deposition. Correctional Office ("CO") III Ridnour testified that when he went to retrieve Plaintiff for his deposition, Plaintiff stated that he was not given 24-hour notice and, therefore, he was not ready. (Doc. 144, Ex. 1 at 3:10-4:8.) On October 23, 2014, Defendants filed their Motion for Sanctions, arguing that Plaintiff's repeated failure to participate in his deposition in good faith warrants sanctions under Rules 37 and 41(b) of the Federal Rules of Civil Procedure. Specifically, Defendants request the Court dismiss this action and require Plaintiff to pay the reasonable expenses incurred in connection with the September 30, 2014 and October 10, 2014 depositions, including attorneys' fees and court reporter costs. (Doc. 144.)
On October 27, 2014, Plaintiff filed a Response in Opposition to Defendants' Motion for Sanctions (Doc. 145), in which he argues that sanctions are not appropriate because: (1) he did not receive the Court's Order denying his Motion to Strike until October 14, 2014, after the deposition; (2) when Plaintiff questioned CO Ridnour on October 9, 2014 on whether he had a deposition the following day, CO Ridnour told him "you have no legal calls, " and (3) on October 10, 2014, CO Ridnour told him only that "someone wanted to talk with me and he requested that person to call back Monday." Defendants filed their Reply on November 11, 2014, arguing that Plaintiff has failed to provide any justification for his failure to participate in his deposition, and he is intentionally seeking to delay these proceedings. (Doc. 151.)
Rule 37(d)(1)(A) provides that the Court may order sanctions if "a party... fails, after being served with a proper notice, to appear for that person's deposition." Rule 37 (d)(3) further states that "[s]anctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Sanctions available under Rule 37(b)(2)(A) include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the ...