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Mpoyo v. FIS Management Services, LLC

United States District Court, D. Arizona

April 24, 2019

Kolela Mpoyo, Plaintiff,
v.
FIS Management Services, LLC, Defendant.

          ORDER

          STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE

         Before the Court are Plaintiff's Motion to Modify Subpoena Duces Tecum (Doc. 69), to which there is no response; Defendant's Motion for Sanctions, Dismissal and Expenses for Plaintiff's Failure to Appear for Deposition (Doc. 54), Plaintiff's Response (Doc. 63), and Defendant's Reply (Doc. 67); Plaintiff's Motion for Protective Order Relating to Plaintiff's Confidential Health Information and Motion for Giving Permission to File a Motion for Leave to Amend Pleadings (Doc. 62), Defendant's Response (Doc. 64), and Plaintiff's Reply (Doc. 68); and the parties' Joint Notice of Discovery Dispute (Doc. 75).

         I. Motion to Modify

         Having reviewed the motion to modify Plaintiff's subpoena duces tecum, the Court will grant it. Accordingly, it is ordered that Plaintiff's Motion to Modify Subpoena Duces Tecum (Doc. 69) is granted.

         II. Motion for Sanctions

         A court may sanction a party, upon motion, for failing to appear for the party's own deposition. Fed.R.Civ.P. 37(d)(1)(A)(i); see Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1222 (9th Cir. 2018). In doing so, the Court may order any item listed under Rule 37(b)(2)(A)(i)-(vi) as a sanction against the offending party. Fed.R.Civ.P. 37(d)(3). Additionally, the court must require the offending party to pay the reasonable expenses, including attorney's fees, caused by its failure to appear at its own deposition. See Fed. R. Civ. P. 37(d)(3).

         After reviewing the briefing, the Court finds that Defendant has been prejudiced by Plaintiff's failure to appear for his deposition. However, the Court is unwilling to dismiss Plaintiff's complaint as a remedy.[1] Instead, the Court will require Plaintiff to pay the reasonable expenses, including attorney's fees, caused by Plaintiff's failure to appear for his own deposition. To the extent Plaintiff has still not appeared for his deposition, this Order also puts Plaintiff on notice that any future failure to appear for his deposition could result in the dismissal of his case or any other sanction pursuant to Rule 37(d). Defendant will have fourteen (14) days to submit its costs and fees associated with bringing this motion. Accordingly, Defendant's motion for sanctions (Doc. 54) is denied in part and granted in part, to the extent the Court will not dismiss Plaintiff's complaint but will assess him the appropriate fees and costs.

         III. Motion for Protective Order and Leave to Amend

         Plaintiff seeks a protective order to seal his confidential health information he has disclosed to Defendant. (Doc. 62 at 1.) He also seeks permission for leave to amend his pleadings. (Doc. 62 at 1.) Defendant does not object to a protective order protecting Plaintiff's confidential information from disclosure to third parties. (Doc. 64 at 1.) However, Defendant does object to Plaintiff's request to amend his pleadings. (Doc. 64 at 1.)

         a. Protective Order

         Having considered the Plaintiff's Motion for Protective Order and the proposed Stipulated Protective Order, and finding good cause appearing, the Court will grant a protective order to seal Plaintiff's resume and application materials.

         b. Leave to Amend

         Plaintiff argues that certain documents obtained from a subpoena of HealthFitness reveal HIPAA violations and that certain EEOC documents are “missing” from Defendant's disclosure. (Doc. 62 at 2-3.) He also argues that the Government shutdown caused delay in obtaining certain EEOC documents. (Doc. 62 at 3-4.) Defendant argues that Plaintiff is simply attempting, yet again, to extend the discovery deadline and to delay this litigation. (Doc. 62 at 1.) Defendant argues that Plaintiff did not act reasonably in pursuing discovery and has not shown any reason to reopen the pleadings more than a year after the filing of his complaint. (Doc. 64 at 2.) Having reviewed the briefing, the Court finds that Plaintiff has not shown good cause for amending his Complaint at this date in the litigation. Thus, the Court denies Plaintiff's request for permission for leave to amend his pleadings.

         Accordingly, the Court grants in part and denies in part Plaintiff's Motion for Protective Order Relating to Plaintiff's Confidential Health Information and Motion for Giving ...


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