Postley v. Housing Authority of the Cityof Hot Springs, Arkansas et al

Filing 55

ORDER adopting 50 Report and Recommendations; granting 31 Motion to Dismiss; finding as moot 51 Motion to be Deposed. Plaintiff's claims against all Defendants are DISMISSED WITHOUT PREJUDICE. Signed by Honorable Susan O. Hickey on February 16, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

KYOMI POSTLEY

V.

PLAINTIFF

CASE NO. 6:15-CV-06120

HOUSING AUTHORITY OF THE CITY
OF HOT SPRINGS, ARKANSAS, et al.

DEFENDANTS
ORDER

Before the Court is the Report and Recommendation filed January 5, 2017, by the
Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
ECF No. 50. Plaintiff has filed an objection. ECF No. 52. Plaintiff has also filed a Motion to be
Deposed Under Rule 30. ECF No. 51. The Court finds this matter ripe for consideration.
I. BACKGROUND
Plaintiff filed the present action pro se on November 6, 2015. ECF No. 1. Plaintiff seeks
relief pursuant to 28 U.S.C. § 1983 and claims that the Housing Authority of the City of Hot
Springs, Arkansas, (“Housing Authority”) terminated her federal housing benefits in violation of
her constitutional rights. ECF No. 1, ¶ 1. Plaintiff states that she received public housing
administered by Defendant Housing Authority and was not required to pay rent due to her level
of income. ECF No. 1, ¶ 2. Furthermore, Plaintiff states that she received an allowance for
utilities. ECF No. 1, ¶ 2. Plaintiff claims that she was evicted from her public housing due to a
utility overage in the amount of $8.18. ECF No. 1, ¶ 19.
Defendants Housing Authority and Reggie Harrington subsequently filed a Motion to
Dismiss, claiming that Plaintiff has failed to make herself available to be deposed. ECF No. 31.

Separate Defendant Sam Spencer has joined this Motion. Defendants argue that Plaintiff’s
refusal “to appear for her deposition or otherwise offer available dates upon which she will
subject herself to be deposed” constitutes lack of prosecution and dismissal of this action is
appropriate. ECF No. 31, ¶ 5. Defendants have provided evidence that they made multiple
attempts to schedule Plaintiff’s deposition. The record shows that on September 22, 2016,
Defendants sent Plaintiff a Notice of Deposition via certified mail, informing Plaintiff that she
was scheduled to be deposed on September 28, 2016, in Little Rock, Arkansas. ECF No. 31-1.
The return receipt shows that Plaintiff received the Notice on September 26, 2016. ECF No. 311. Counsel for Defendant Sam Spencer contacted Plaintiff on September 27, 2016, and was
informed by Plaintiff that she would not be present for the deposition due to her financial
inability to travel to Arkansas from Kansas, where she had relocated. ECF No. 31-1. Defense
Counsel requested that Plaintiff provide a suitable date to be deposed, but Plaintiff failed to do
so.
Defendants then sent Plaintiff a Second Notice of Deposition on September 28, 2016, via
certified mail. ECF No. 31-1. The Notice informed Plaintiff that her deposition was scheduled to
be taken on October 6, 2016. ECF No. 31-1. The return receipt notes that Plaintiff received this
Second Notice on October 3, 2016. In the letter accompanying the Second Notice, Counsel for
Defendant Sam Spencer notified Plaintiff that if she was unable to attend the deposition, she
should contact Defense Counsel to provide a suitable date. ECF No. 31-1. Plaintiff failed to
appear and did not provide an alternate date.
In her response to Defendants’ Motion to Dismiss, Plaintiff claims that she was originally
told that her deposition could be taken in Kansas 1, and that she was unable to travel to Arkansas

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It is unclear whether Defense Counsel ever offered to depose Plaintiff outside of Arkansas. Plaintiff claims that
“Ms. Squires,” who appears to be an employee of the Arkansas Municipal League, informed her by telephone that

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for either deposition due to financial hardship, lack of transportation, and her responsibilities as
mother of five children. ECF No. 34. Plaintiff also claims that “Defendant is responsible for the
financial position that [Plaintiff] is presently in.” ECF No. 34, p. 2.
The Court subsequently issued a Show Cause Order on December 6, 2016, directing
Plaintiff to appear before the Court on January 5, 2017, to show cause as to why her case should
not be dismissed. ECF No. 41. In that Order, the Court made clear that “Plaintiff’s failure to
appear may result in a recommendation that her case be dismissed for her failure to prosecute
this action.” ECF No. 41.
In response to the Show Cause Order, Plaintiff filed a Motion to Show Cause Why
Plaintiff is Unable to Travel for Deposition. ECF No. 42. In that Motion, Plaintiff re-iterated the
fact that she is unable to travel to Arkansas due to her financial situation, lack of transportation,
and familial responsibilities. Likewise, Plaintiff alleged that she suffers from “PTSD,
Fibromyalgia, Depression Migraines and [is] receiving psychological counseling services for
[her] entire family.” ECF No. 42, ¶ 3. Plaintiff also claimed that Defendants are harassing her
“because of her financial instability and her mental and medical illnesses.” ECF No. 42, ¶ 4.
Plaintiff subsequently failed to appear at the Show Cause Hearing held on January 5, 2017. ECF
No. 49.
Judge Bryant entered a Report and Recommendation on January 5, 2017, recommending
that Defendants’ Motion to Dismiss be granted for failure to prosecute and failure to comply
with an Order of the Court. ECF No. 50. On January 23, 2017, Plaintiff filed a Motion to be
Deposed Under Rule 30 as well as objections to Judge Bryant’s Report and Recommendation.

she could be deposed in Kansas due to her familial responsibilities and the fact that Defense Counsel Monaghan was
pregnant. Regardless of the veracity of this claim, Sara Monaghan only represents Separate Defendant Sam Spencer
in this action. Counsel for Separate Defendant Housing Authority and Separate Defendant Richard Harrington state
that they have never offered to depose Plaintiff outside of Arkansas.

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ECF Nos. 51, 52. In her objection, Plaintiff re-states her argument that her failure to attend the
scheduled depositions and Show Cause Hearing should not be used as grounds for dismissal
because she is unable to travel to Arkansas due to her current circumstances. ECF No. 52.
Plaintiff further states that she “responded to the Motion to Dismiss because she has complied
with two rounds of interrogatories and responded to ‘Show Cause’ why she is unable to travel
outside of the state of Kansas.” ECF No. 52, p. 1. Plaintiff further states that she “did not know
the Defendants and the Court could dismiss her case just because she is indigent and has no
means to finance her travel to Arkansas for a deposition with her five children.” ECF No. 52, p.
1.
II. DISCUSSION
It is well established that a pro se litigant is bound to follow procedural rules just as
licensed attorneys. See Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir. 2000).
Furthermore, Rule 41 of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails
to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.” FED. R. CIV. P. 41(b). In regard to depositions, it is generally
accepted that a plaintiff must make “herself available for examination in the district in which suit
was brought.” 8A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS,
FEDERAL PRACTICE AND PROCEDURE § 2112 (3d ed. 2010). However, this is a general rule “and
is not adhered to if plaintiff can show good cause for not being required to come to the district
where the action is pending.” Id.; see Archer Daniels Midland Co., v. Aon Risk Servs., Inc., 187
F.R.D. 578, 588 (D. Minn. 1999). That being said, courts have noted the special considerations
regarding the deposition of a plaintiff:
The plaintiff . . . stands to gain a substantial monetary sum and/or other beneficial
relief as a result of suing a defendant. A plaintiff, therefore, cannot invoke the
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mere fact [of] inconvenience or expense as a legitimate reason to refuse to appear
and submit himself or herself to questioning by the defendant regarding the basis
for the claim.
United States v. Rock Springs Vista Dev., 185 F.R.D. 603, 604 (D. Nev. 1999).
In the present case, Plaintiff has failed to make herself available to be deposed by
Defendants. Plaintiff claims that she is unable to afford the trip to Arkansas and has no one to
care for her children were she able to afford the trip. Based on this contention and the allegation
that Counsel for one of the Defendants originally told her she could be deposed in Kansas,
Plaintiff seeks to be deposed by remote means. However, these assertions are not sufficient to
establish good cause so as to avoid the application of the general rule that a plaintiff must make
herself available for deposition in the district in which suit was brought. Although Plaintiff has
thoroughly explained why it would be difficult for her to return to Arkansas to attend a
deposition, these hardships are not sufficient to overcome Defendants’ interests in conducting a
face-to-face deposition, especially in light of the nature of Plaintiff’s claims. Furthermore,
Defense Counsel attempted to work with Plaintiff to determine a suitable date for Plaintiff to
appear for a deposition, but Plaintiff did not provide a date, stating that she could not and would
not be financially able to come to Arkansas in the near future. With that in mind, Defense
Counsel simply scheduled a deposition in hopes that Plaintiff would appear, though she did not.
Plaintiff, likewise, failed to appear before the Court when ordered to do so for the
purpose of explaining why her case should not be dismissed for failure to prosecute. The Order
issued by Judge Bryant specifically stated that Plaintiff was to appear in person. ECF No. 41.
Although Plaintiff did respond to the Order by filing a motion explaining why she could not
appear, it does not excuse the fact that she was ordered by the Court to appear and failed to
comply.

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At this point, the present dispute regarding Plaintiff’s ability to travel to Arkansas has
consumed this litigation for nearly four months and Plaintiff has yet to provide a date when she
could appear to be deposed. Furthermore, based on Plaintiff’s assertions, it appears that Plaintiff
will not be able to come to Arkansas at any time in the near future. Although the Court
recognizes the hardship and inconvenience that travel to Arkansas presents to Plaintiff, it does
not excuse the fact that Plaintiff must play an active role in this litigation, which includes both
making herself available for a face-to-face deposition as well as appearing before the Court when
ordered to do so. Because Plaintiff has failed to do either of these things, the Court finds that
Plaintiff’s claims should be dismissed.
III. CONCLUSION
For the foregoing reasons, the Court adopts Judge Bryant’s Report and Recommendation
(ECF No. 50) in toto and finds that the Motion to Dismiss filed by Separate Defendants Housing
Authority of the City of Hot Springs, Arkansas; Reggie Harrington; and Sam Spencer (ECF No.
31) should be GRANTED. Therefore, Plaintiff’s claims against all Defendants 2 should be and
hereby are DISMISSED WITHOUT PREJUDICE. Furthermore, Plaintiff’s Motion to be
Deposed Under Rule 30 (ECF No. 51) by these Separate Defendants is hereby DENIED AS
MOOT.
IT IS SO ORDERED, this 16th day of February, 2017.

/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge

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Plaintiff’s claims are also dismissed in regard to Separate Defendants Baer and Tate as, although they have not
responded to Plaintiff’s allegations, they have been named in their official capacities only and all claims against the
Housing Authority of Hot Springs, Arkansas, have been dismissed.

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