Gant v. McDonald et al
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 06/30/11 granting 27 Motion to Compel. Plaintiff shall attend the deposition re-noticed by defense counsel. Defendants shall conduct plaintiff's deposition on or before 08/26/11. The dispositive motion cut-off date is re-set for 10/14/11. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY AUSTIN GANT,
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Plaintiff,
No. 2: 10-cv-1364 LKK KJN P
vs.
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M.D. McDONALD, et al.,
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Defendants.
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ORDER
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Plaintiff is a former state prisoner proceeding without counsel with a civil rights
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action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ motion to compel
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and to modify the scheduling order. For the following reasons, defendants’ motion is granted.
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Defendants move to compel plaintiff to attend his deposition. The background to
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this motion is as follows. When plaintiff originally filed this action, he was incarcerated in state
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prison. On February 8, 2011, plaintiff filed a notice of change of address indicating that he was
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no longer incarcerated. Plaintiff now resides in Redding, California. On February 14, 2011,
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defendants served plaintiff by mail with a notice of deposition at his new address. The notice
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stated that the deposition would take place on April 13, 2011, at the Office of the Attorney
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General in Sacramento, California. Plaintiff did not appear for his deposition on that date.
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In his opposition to the motion to compel, plaintiff states that he made
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“numerous” telephone calls to defense counsel to arrange for the deposition to take place after his
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release from incarceration, but defense counsel did not return his calls. Plaintiff also states that
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because he is on parole, he must obtain permission from his parole officer to go further than fifty
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miles from his assigned parole area. Plaintiff suggests that Sacramento is more than fifty miles
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from his parole area.
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In their reply to plaintiff’s opposition, defendants attach the declaration of
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plaintiff’s parole agent, K. McClure. Agent McClure states that plaintiff is not prohibited by the
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terms of his parole from attending his deposition in Sacramento. Agent McClure states that
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plaintiff can obtain a travel slip to attend his deposition in Sacramento. According to Agent
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McClure, plaintiff did not mention to him needing to attend a deposition in Sacramento nor did
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he ask for a travel slip to attend the deposition.
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Also attached to defendants’ reply is a declaration by defense counsel who states
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that on February 9, 2011, he received a voice mail message from plaintiff informing him of his
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change of address. Plaintiff also left a voice mail message on May 11, 2011, after plaintiff failed
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to attend his deposition and after defense counsel filed the motion to compel. According to
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defense counsel, these are the only telephone calls he received from plaintiff.
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Because plaintiff failed to attend his properly noticed deposition, defendants’
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motion to compel is granted. Fed. R. Civ. P. 37(d). Plaintiff is ordered to attend the deposition
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that defendants re-notice.1
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Defendants also move for monetary sanctions of $1050 based on plaintiff’s failure
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to appear at his deposition. The court may impose sanctions on a party who fails to appear at a
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deposition. Fed. R. Civ. P. 37(d)(3). The court must require the party failing to attend to pay the
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reasonable attorneys’ fees, caused by the failure, unless the failure was substantially justified or
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other circumstances make an award of expenses unjust. Id.
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The parties may stipulate that plaintiff’s deposition be taken by telephone or other
remote means as permitted by Federal Rule of Civil Procedure 30(b)(4).
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Plaintiff’s failure to attend his deposition appears based on his misunderstanding
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of the terms of his parole. Although plaintiff should have clarified this matter with his parole
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agent, the undersigned finds that these circumstances do not warrant the imposition of sanctions
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at this time.
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Defendants request that the scheduling order be modified so that there is sufficient
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time for them to take plaintiff’s deposition and file a dispositive motion. Good cause appearing,
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this request is granted.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Defendants’ motion to compel (Dkt. No. 27) is granted; plaintiff shall attend
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the deposition re-noticed by defense counsel;
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2. Defendants shall conduct plaintiff’s deposition on or before August 26, 2011;
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3. The dispositive motion cut-off date is re-set for October 14, 2011.
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DATED: June 30, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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