Polite v. Child Development Inc

Filing 63

ORDER granting in part and denying in part deft's 53 Motion for Sanctions and Dismissal for Failure to Prosecute; pltf must reimburse deft $2,289.17 within 21 days from the entry date of this Order; pltf's 57 Motion for Sanctions and for Disciplinary Actions is denied. Signed by Judge Susan Webber Wright on 7/24/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

TERESA POLITE,
Plaintiff
VS.
CHILD DEVELOPMENT, INC.,
Defendant

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NO: 5:11CV00252 SWW

ORDER
Before the Court is defendant’s motion for sanctions and dismissal for failure to
prosecute. Plaintiff responded and filed a motion for sanctions and for disciplinary actions. For
the reasons stated below, the Court grants defendant’s motion for sanctions. Plaintiff is ordered
to pay defendant $2,289.17 in fees and costs within twenty-one (21) days from the date of entry
of this Order. Failure to do so will result in dismissal of this action. Because plaintiff presents
no basis for imposing sanctions on or bringing disciplinary actions against defendant, her motion
is denied.
On April 24, 2012, plaintiff failed to attend her deposition scheduled for 9:00 a.m. at
defendant’s counsel’s office in Little Rock. Later that day, after calling the Court’s chambers,
plaintiff filed a motion asking that her deposition be postponed until the day of the trial, claiming
she had financial and transportation issues. On May 22, 2012, the Court denied plaintiff’s
motion to continue her deposition until the trial date and stated plaintiff must sit for a deposition
no later than June 15, 2012. The Court also directed plaintiff to provide defendant with a signed
employment records release within seven days. Defendant’s counsel sent plaintiff an amended

notice of deposition on May 22, by regular and certified mail, scheduling her deposition for
Tuesday, June 5, 2012, in Pine Bluff. The certified letter was delivered on May 25, 2012. On
May 29, 2012, plaintiff filed a motion for sanctions and requested that her scheduled deposition
be moved from Pine Bluff to Desha County, Arkansas. On June 1, 2012, the Court denied the
motion. The Court stated plaintiff presented no basis for imposing sanctions on defendant, and
that plaintiff’s failure to comply with the Court’s order to sit for a deposition and provide a
release for employment records could result in dismissal of her lawsuit. Plaintiff did not attend
the deposition on June 5 and did not provide the release.
Plaintiff says that on June 12, she called counsel for defendant to tell her she would be
able to meet with counsel on June 15, 2012. Defendant’s counsel was not in the office and
plaintiff left a voice message. Plaintiff then wrote a letter to defendant’s counsel to tell her she
would be able to meet for plaintiff’s deposition at 9:00 a.m., on June 15, 2012, at the federal
courthouse in Pine Bluff. Plaintiff said she placed the letter in the mail and faxed it along with a
employment records release to defendant’s counsel. Plaintiff says it was not until she got home
on the evening of June 12, 2012, that she received a copy of the Court’s June 1, 2012, denying
her motion and ordering her to attend her scheduled June 5 deposition.
Defendant filed the motion before the Court on June 13, 2012, asking the Court to
sanction plaintiff for not attending her deposition and providing the release and to dismiss
plaintiff’s complaint for lack of prosecution. Plaintiff responded on June 25, 2012, with her own
motion for sanctions. Defendant filed a response on July 3, 2012, and plaintiff filed a reply to
defendant’s response on July 17, 2012.
Plaintiff did not appear for her deposition scheduled for June 5; she says she was not
aware of the Court’s June 1 ruling keeping the June 5 deposition in Pine Bluff as scheduled until
June 12. Plaintiff says she showed up for the appointment she unilaterally scheduled with
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defendant’s counsel on June 15, arriving at the federal courthouse at approximately 8:50 a.m..
“After inquiring about scheduling for the Court Rooms, she went to Simmons First National
Bank building on Main Street in Pine Bluff,” the site of her scheduled June 5 deposition, around
9:15 a.m. and remained until 10:00 a.m. Pl’s Br. in Supp. of Mot. [docket entry 58] at 4.
Defendant’s counsel was not available to take plaintiff’s deposition on June 15, 2012, due to
previously-planned out-of-town travels.
Pursuant to Fed.R.Civ.P. 37, the Court finds plaintiff fails to substantially justify her
failure to appear at her June 5, 2012, deposition or to provide her employment records release
and that sanctions are appropriate. It is plaintiff’s responsibility to monitor the progress of her
case, including the disposition of the motion she filed to move her June 5 deposition to Desha
County. Further, this is not the first time plaintiff failed to show up for a scheduled deposition in
this case. Plaintiff is ordered to reimburse defendant for the fees and costs associated with the
scheduled June 5, 2012, deposition, including the filing of the motion for sanctions, in the
amount of $2,289.17. Failure to pay in a timely manner will result in dismissal of plaintiff’s
case.
IT IS THEREFORE ORDERED that defendant’s motion [docket entry 53] is granted in
part and denied in part. Plaintiff must reimburse defendant $2,289.17 within twenty-one (21)
days from the date of entry of this Order. IT IS FURTHER ORDERED that plaintiff’s motion
[docket entry 57] is denied.
DATED this 24th day of July, 2012.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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