Jordan v. Central Transport, LLC et al

Filing 66

ORDER granting in part and denying in part 61 Motion for Sanctions. (See Order for specifics.) Signed by Honorable Barry A. Bryant on September 27, 2018. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
MARQCHELLO JORDAN
v.

PLAINTIFF
Civil No. 4:17-cv-04011

CENTRAL TRANSPORT, LLC et al.

DEFENDANTS
ORDER

Pending now before the Court is Plaintiff’s Renewed Motion for Sanctions against separate
Defendant, Elmer Enrique Ventura (“Ventura”). ECF No. 61. Defendants have responded to this
Motion. ECF No. 63, 65. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the
Honorable Susan O. Hickey referred this Motion to this Court. After considering this Motion and
arguments of counsel, the Court finds as follow:
I.

Background:
This lawsuit arises from an accident involving three tractor-trailers which occurred on May

6, 2015. ECF No. 23. Plaintiff alleges Defendants were negligent in causing this accident. Id. It
has also been alleged by Plaintiff that Defendant Ventura was at the time of the accident an agent
or employee of Defendant Central Transport, LLC (“Central”) and was acting within the scope of
his agency or employment at this time. Id.
On May 2, 2018, Plaintiff filed a Motion for Sanctions against Separate Defendant Ventura
based upon his failure to attend his properly noticed deposition and for failing to comply with his
written discovery obligations. ECF No. 53. At that time, Plaintiff had been attempting to schedule
Ventura’s deposition since October 30, 2017. Id.
On June 13, 2018, this Court denied as premature Plaintiff’s Motion for Sanctions. ECF No.
60. However, Plaintiff was ordered to appear for a deposition no later than July 31, 2018. Id.
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Further, Ventura was ordered to provide responses to any written discovery responses that remained
outstanding no later than July 15, 2018. Id.
According to Plaintiff, after several attempts to schedule Ventura’s deposition, he has not
appeared for his deposition by the deadline imposed by this Court and has not supplemented his
outstanding discovery. ECF No. 61.1 Because of Ventura’s conduct, Plaintiff filed this Renewed
Motion for Sanctions, and seeks to have the Court strike Ventura’s entire Answer as an appropriate
sanction. Id.
Ventura responded to this Motion. ECF No. 63. Counsel for Ventura stated they have
continued to attempt to contact Ventura to arrange dates for his deposition. Id. However, according
to counsel, Ventura is an over-the-road truck driver who now works with a company other than
Central and counsel has had considerable difficulty in reaching and communicating with Ventura.
ECF No. 64. Counsel argues the Court should deny Plaintiff’s Motion because Ventura has not
engaged in conduct sufficient to justify the striking of his Answer. Id.
Defendant Central responded and requests Plaintiff’s Motion be denied and to the extent any
sanctions are awarded, that they be crafted to ensure Central is shielded from any prejudice
associated with those sanctions. ECF No. 65.
II.

Discussion:
Federal Rule of Civil Procedure 37(d)(1)(A)(i) provides that the Court may on motion, order

sanctions if a party, after being served with proper notice fails to appear at his scheduled deposition.
The type of sanctions that may be imposed include designating certain facts to be deemed admitted;

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Plaintiff counsel states these issues are ones of Ventura’s own making and not the fault of his counsel.
ECF No. 61-1, Pg. 4-5.

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prohibiting a disobedient party from introducing certain evidence; striking pleadings in whole or in
part; staying proceedings until a discovery order is obeyed; dismissing an action or entering a default
judgment; or treating the failure to obey a discovery order as contempt of court. Fed. R. Civ. P.
37(b)(2)(A)(i)-(vi). With this Motion, Plaintiff seeks to strike Ventura’s Answer to Plaintiff’s First
Amended Complaint.
Although the Court is understanding of Plaintiff’s position, at this point, the Court is not
inclined to strike the entire Answer of Ventura. Instead, the Court will strike Paragraph 3 of
Ventura’s Answer and the allegations contained in Paragraphs 4, 5 and 6 of Plaintiff’s First
Amended Complaint will be deemed admitted. Further, the Court will strike Paragraphs 37-53 of
Ventura’s Answer.
III.

Conclusion:
Based on the foregoing, the Plaintiff’s Renewed Motion for Sanctions (ECF No. 61) is

GRANTED IN PART and DENIED IN PART, as set out above.
ENTERED this 27th day of September 2018.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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