United States District Court, D. Arizona
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 ...