Morton v. Arizona Interscholastic Association Incorporated

Filing 39

ORDER denying Plaintiff's Motion for Reconsideration (Doc. 34 ). See order for complete details. Signed by Judge Neil V. Wake on 6/5/14. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carly Morton,

No. CV-13-02135-PHX-NVW
Plaintiff,

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v.

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ORDER

Arizona Interscholastic Association
Incorporated,

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Defendant.

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Before the Court are Plaintiff’s Motion for Reconsideration (Doc. 34), Defendant’s

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response (Doc. 36), and Plaintiff’s reply (Doc. 38). For the following reasons, Plaintiff’s

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Motion will be denied.

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The Court’s May 6, 2014 Order (Doc. 32) recounts the relevant facts. Briefly,

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Plaintiff Carly Morton, proceeding in propria persona, sued Defendant for unlawful sex

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discrimination and retaliation related to her employment as a high school basketball

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referee. Morton initially sought more than $10 million dollars and demanded that “the

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Defendant no longer exist.” Doc. 22 at 3. She subsequently requested that the Court enter

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her into the California law school of her choice as additional relief. Doc. 28 at 6; Doc. 34

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at 9. After agreeing to a deposition date, Morton changed her mind. Because it would be

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“user friendly to attorneys,” Morton told Defendant she would be “unavailable” to be

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deposed. Doc. 29 at 15. Despite Defendant’s warnings, she failed to appear because she

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lacked counsel and was “busy preparing for trial.” Id. at 19. Defendant moved for

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sanctions. In response, Morton offered only one argument: The Court’s Scheduling Order

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rendered Defendant’s motion untimely. That argument misapprehended the Scheduling

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Order. The Court dismissed this action with prejudice, and the Clerk entered judgment

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against Morton.

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In her Motion for Reconsideration, Morton now makes the following arguments: (1)

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The deposition notice does not explicitly use the words “audio,” “visual,” or

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“stenographic” to describe the method for recording the testimony and was thus improper;

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(2) the Court may not dismiss her case under Rule 37 without first ordering her to appear at

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the deposition, warning her “for any rule misconduct,” or opting for less drastic sanctions,

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especially since her misconduct was not “continuous”; and (3) Defendant was not

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prejudiced. See Doc. 34.

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As a threshold matter, the merits of these new arguments are not properly before the

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Court. Because Morton moved for reconsideration six days after the adverse judgment, the

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Court considers it under both Rules 59 and 60. See Miller v. Transamerican Press, Inc.,

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709 F.2d 524, 527 (9th Cir. 1983) (“The court will construe [the motion], however styled,

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to be the type proper for the relief requested.”). Neither justifies post-judgment relief here.

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Rule 59 permits a motion to alter or amend a judgment. Fed. R. Civ. P. 59(e).

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“Amendment or alteration is appropriate under Rule 59(e) if (1) the district court is

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presented with newly discovered evidence, (2) the district court committed clear error or

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made an initial decision that was manifestly unjust, or (3) there is an intervening change in

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controlling law.” Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

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Morton has not presented any newly discovered evidence nor alleged a change in the law.

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There is only the possibility of clear error or manifest injustice. But it was not clear error

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to decide Morton’s timeliness argument against her. And it cannot be clear error to have

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decided only the argument then presented.

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Rule 60 provides limited grounds to set aside a judgment. Fed. R. Civ. P. 60(b).

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Morton has not invoked any of them. As noted, she simply makes arguments for the first

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time that properly belonged in her response to Defendant’s Motion for Sanctions. Absent

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excusable neglect or other reasons justifying relief, Morton cannot use Rule 60 to offer

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arguments she withheld when they were timely. See 11 C. Wright & A. Miller, Fed. Prac.

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& Proc. Civ. § 2857 (3d ed. 2012) (“Courts have been unyielding in requiring that a party

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show good reason for the failure to take appropriate action sooner.”); see also LRCiv

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7.2(g)(1) (“The Court will ordinarily deny a motion for reconsideration of an Order absent

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a showing of manifest error or a showing of new facts or legal authority that could not have

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been brought to its attention earlier with reasonable diligence.”).

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Reconsideration does not justify post-judgment relief under the relevant rules.

Her Motion for

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Even if the Court reached Morton’s new arguments, however, they would not avail

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her. Defendant noticed Morton’s deposition one month ahead of time and sent her a copy.

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In addition to identifying the subject, date, time, and location of the examination, the

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notice stated, “You are hereby notified that, pursuant to RCP 26 and 30, the deposition will

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be taken upon oral examination of the persons whose names and addresses are stated below

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at the time and place stated below before an officer authorized by law to administer oaths.”

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Doc. 26 at 1. The reference to an authorized officer is sufficient to apprise noticees that a

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court reporter will administer oaths and record testimony stenographically. Cf. Henry L.

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Hecht, How to Prepare and Serve a Federal Notice of Deposition or Subpoena (with

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Forms), 18 Prac. Litig. 9, 12 (2007) (“Normally, the officer is the same person as the

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person who records the testimony; if not the same person, the recordation is made under

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the direction of the officer and you must retain a separate stenographic reporter.”),

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available at http://scholarship.law.berkeley.edu/facpubs/303.

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In any event, Morton knew the deposition’s date and location—a date to which she

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had agreed. Nonetheless, she simply refused to attend, responding to Defendant that notice

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was improper, that she was busy preparing for trial, and that she did “not have a witness or

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legal counsel to assist her in matters outside the Courtroom (locations that are not neutral).”

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Doc. 29 at 19. Morton did not raise any notice irregularities with the Court despite having

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one month to do so. And, as noted above, she did not brief them in her response to

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Defendant’s Motion for Sanctions. See Doc. 31. On this record, any asserted failure to

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identify explicitly the method of recording does not excuse Morton’s flagrant

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nonappearance. See Cerami v. Robinson, 85 F.R.D. 371, 372 (S.D.N.Y. 1980) (“Defendant

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contends that the original notice of deposition was improper because it left blank the date

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of the deposition. But the notice was accompanied by a letter asking defendant to specify a

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date, and defendant ignored the letter. Moreover, defendant waived any irregularity in the

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notice by failing to object in timely fashion. Under these circumstances, we hold that the

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failure to specify a date in the notice did not excuse defendant’s failure to attend the

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deposition or otherwise respond to the notice.”) (citations and quotation marks omitted).

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Dismissal is appropriate here even though “[t]here was never a Court order to

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appear at a deposition,” Morton was never “individually warned for any rule misconduct,”

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and she “was not given the opportunity of less drastic sanctions.” Doc. 34 at 5–6. Neither

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court orders nor warnings are prerequisite to discovery compliance.1 Rule 37(d) allows for

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direct sanctions for a party’s nonappearance at her own deposition. Fed. R. Civ. P.

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37(d)(1)(A)(i). These sanctions are available apart from those allowed when a deponent

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disregards a deposition-related court order. See Fed. R. Civ. P. 37(b). “Unlike FRCP

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37(b), neither entry of a discovery order nor a finding of bad faith is a prerequisite for

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imposing sanctions under FRCP 37(d).” Lee v. Walters, 172 F.R.D. 421, 425 (D. Or. 1997)

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(citing Halaco Eng’g Co. v. Costle, 843 F.2d 376, 380 n.1 (9th Cir. 1988)); see also

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Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (“Dismissal is a proper sanction

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under Rule 37(d) for a serious or total failure to respond to discovery even without a prior

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order.”).

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Moreover, a monetary sanction alone would be insufficient. A party must “pay the

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reasonable expenses . . . caused by the failure” to appear at her deposition “[i]nstead of or

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in addition to” other sanctions “unless the failure was substantially justified or other

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circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). Here,

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Moreover, the Court did admonish Morton to comply with procedural rules and
direct her to the Federal Rules of Civil Procedure governing discovery, albeit before her
misconduct.
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however, substituting a fee award for dismissal would allow Morton to grant herself an

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extension of the case management schedule.

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A fee award alone also fails to remedy the prejudice to Defendant. The expenses

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associated with the nonappearance do not fully capture Defendant’s litigation costs. This is

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particularly true because Plaintiff previously filed a similar action against Defendant and

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only partially prosecuted it. The burden resulting therefrom entitles Defendant to timely

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and good faith prosecution and compliance in this case.

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Morton’s willful nonappearance belies good faith, cf. Stars’ Desert Inn Hotel &

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Country Club, Inc. v. Hwang, 105 F.3d 521, 525 (9th Cir. 1997) (“Disobedient conduct not

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shown to be outside the control of the litigant is sufficient to demonstrate willfulness, bad

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faith or fault warranting default.”), and prejudices Defendant, despite the fact Morton did

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not “continuously” violate discovery rules or court orders. Thus, dismissal is warranted

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here.

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Finally, to the extent Morton makes other arguments—for example, that Defendant

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should have moved for sanctions pursuant to Rule 11 rather than Rule 37—they are

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meritless.

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IT IS THEREFORE ORDERED denying Plaintiff’s Motion for Reconsideration
(Doc. 34).
Dated this 5th day of June, 2014.

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