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Dishon v. Gorham

United States District Court, D. Arizona

October 19, 2018

Terry Dishon and Luci Dishon, Plaintiffs,
v.
Connie R Gorham and Gary K Haak, Defendants.

          ORDER

         Plaintiffs Terry Dishon and Luci Dishon (“Plaintiffs”) allege Defendants Gary Haak (“Haak”) and Connie Gorham (“Gorham,” and collectively with Haak, “Defendants”) demanded payment from Plaintiffs in violation of a prior agreement between the parties. The case proceeded to discovery, during which several disputes arose. These disputes, described in the parties’ statements (Docs. 91, 95), are before the Court now.

         BACKGROUND

         Discovery was scheduled to complete by September 28, 2018.[1] (Doc. 88.) Pursuant to discovery rules, Plaintiffs served Defendants with requests for admission, requests for production, and interrogatories on June 28, 2018. In addition, Plaintiffs attempted to confer with Defendants regarding mutually agreeable dates for Defendants’ depositions. When Defendants failed to respond, Plaintiffs noticed Defendants’ depositions for August 22–23, 2018 in Phoenix, Arizona. Defendants did not respond to either notice until the eve of the first deposition, when Haak informed Plaintiffs that he would not appear. At that time, Plaintiffs’ lawyers were already at the Dallas airport waiting to board their flight to Phoenix, and it appears they had purchased non-refundable tickets for their travel.

         On September 19, 2018, Plaintiffs filed a discovery dispute requesting the Court to (1) impose monetary sanctions for Defendants’ failure to appear at their depositions, (2) order Defendants to travel to Texas, where Plaintiffs’ counsel is located, for rescheduled depositions, and (3) compel Defendants to serve responses to all outstanding requests for production and interrogatories. The Court denied Plaintiffs’ requests, noting that Defendants had not provided a summary of their position and ordering the parties to consult and make a sincere effort to resolve the disputes. (Doc. 90.) The parties did not resolve their disputes and filed a joint statement on September 28, 2018, in which Plaintiffs again asked the Court to grant the three requests described above. (Doc. 91.) Due to inconsistencies in the parties’ representations regarding whether Defendants responded to Plaintiffs’ discovery requests,[2] the Court ordered the parties to file a joint statement clarifying their positions. (Doc. 94.)

         On October 11, 2018, Plaintiffs filed a statement on discovery responses, including only Plaintiffs’ statement. (Doc. 95.) According to Plaintiffs, Defendants ignored Plaintiffs’ request to confer and did not contribute to the statement. Plaintiffs state that despite the parties’ agreement for Defendants to provide substantive discovery responses by September 26, Plaintiffs did not receive responses to interrogatories and responses to requests for admission until October 9. In addition, Plaintiffs did not receive responses to Plaintiffs’ requests for production until October 11. Plaintiffs request the Court to (1) declare all Defendants’ objections to interrogatories to have been waived due to untimely response; (2) declare all the factual averments and matters contained in Plaintiffs’ requests for admission to be admitted as a matter of law and prohibit Defendants from seeking to introduce any evidence that would controvert, contradict, or minimize the legal effect of all such factual matters; (3) declare all Defendants’ objections to requests for production to have been waived and compel Defendants to produce all responsive information within 7 days.

         The Court now decides the parties’ discovery disputes. For the foregoing reasons, Plaintiffs’ requests are granted in part and denied in part.

         I. Sanctions for Defendants’ Failure to Appear for Depositions

          Rule 37(d) allows for sanctions when a party fails to attend its own deposition. Fed. R. Civ. P. 37(d)(i) (providing for sanctions if a party “fails, after being served with proper notice, to appear for that person’s deposition”). Here, Defendants did not respond to Plaintiffs’ multiple requests to find mutually agreeable dates for depositions. Nor did Defendants respond to Plaintiffs’ deposition notices until the night before the deposition, when Plaintiffs’ attorneys were already at the airport traveling to Phoenix. When Defendant Haak finally responded, he informed Plaintiffs that he would not appear.

         Defendants dispute Plaintiffs’ statement that Plaintiffs made multiple attempts to confer about deposition dates, stating that Plaintiffs “made a single attempt via email on July 6, 2018.” (Doc. 91 at 2:22–23.) Defendants’ own exhibits show otherwise: Plaintiffs made at least three attempts and served deposition notices only after eight days with no response. (Doc. 91-3.) Defendants’ excuse that they did not receive deposition notices in the mail is similarly unavailing in light of United States Postal Service proof of delivery to Haak. (Doc. 91-1.)

         Under these circumstances, Rule 37(d) sanctions are appropriate even if Defendants’ motion to stay discovery was pending at the time they failed to appear. The pending motion does not excuse Defendants’ failure to appear. See, e.g., Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n, 316 F.R.D. 327, 336 (D. Nev. 2016). In any event, Defendants should have conferred with Plaintiffs and/or submitted a joint statement to the Court regarding Defendants’ intent to not attend depositions well before their failure to appear. Accordingly, Plaintiffs’ request for Rule 37(d) sanctions for Defendants’ failure to attend their own depositions is granted. Defendants shall pay Plaintiffs, no later than November 7, 2018, the reasonable expenses incurred in preparing for depositions and traveling to Phoenix. Defendants shall file a notice of compliance no later than November 12, 2018.

         II. Location and Time for Defendants’ Rescheduled Depositions

         Because Defendants did not appear for their depositions, Plaintiffs now request an extension of the discovery deadline (originally scheduled to end September 28, 2018) so depositions may be taken within the discovery period. Plaintiffs also request the Court to order Defendants to give their depositions in Fort Worth, Texas, where Plaintiffs’ lead attorneys are located.

         Plaintiffs’ request for the extension of the discovery deadline is granted. Rule 16(b)(4) allows the modification of a schedule if good cause exists. Fed. R. Civ. P. 16(b)(4). Here, Plaintiffs have shown good cause: The need to reschedule Defendants’ depositions as a result of Defendants’ failure to appear. Discovery shall be completed by November 12, 2018. All other deadlines shall be extended in accordance with the extension of discovery.

         On the other hand, the Court will not order Defendants to travel to Fort Worth, Texas for their rescheduled depositions. While the Court is sympathetic that Plaintiffs expended considerable time and resources in preparation for Defendants’ depositions, the Court has already ...


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