Halliday et al v. Spjute et al

Filing 205

ORDER re Defendants' 193 Motion to Compel Attendance at Deposition signed by Magistrate Judge Gary S. Austin on 2/14/2014. Motion GRANTED. (Martinez, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA

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MICHALE IOANE, ET. AL.,

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Plaintiffs,
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v.
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KENT SPJUTE, ET. AL.,
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Defendants.
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_______________________________________)

Case No. 1:07-cv-00620-AWI-GSA
ORDER RE. DEFENDANTS’
MOTION TO COMPEL
ATTENDANCE AT DEPOSITION
Doc. 193

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INTRODUCTION
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On February 5, 2014, the United States and the individual defendants (collectively,
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“Defendants”) in this matter,1 filed a Motion to Compel the attendance of Plaintiff Shelly Ioane
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(“Plaintiff”) at her deposition set for February 19, 2014. Doc. 193. Plaintiff filed an Opposition
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on February 12, 2014. The Court held a hearing on shortened time on February 14, 2014. Doc.
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203. Counsel Colin Sampson appeared on behalf of Defendants. Plaintiff failed to appear. For
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the reasons discussed below, Defendant’s Motion to Compel is GRANTED.
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The individual defendants are: Kent R. Spjute, Jean Nole, Jeff Hodges, Brian Applegate, and Michelle M. Casarez.

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DISCUSSION

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Defendants’ moving papers indicate that Defendants’ counsel and Plaintiff had discussed

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the matter of Plaintiff’s deposition as early as January 6, 2014. Doc. 193-2. More importantly,

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the Defendants served a Notice of Deposition on Plaintiff on January 23, 2014, which specified

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that the Deposition was scheduled for February 19, 2014 and also provided the time and place of

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the deposition.2 Doc. 193-3. Plaintiff states that she received the Notice of Deposition on

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January 29, 2014. Docs. 193-5; 200, ¶ 4. Given that Plaintiff received the Notice of Deposition

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on January 29, 2014, she was notified as to the date, time, and place of the deposition three

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weeks before the deposition is to take place. The Court finds that notification of the deposition

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three weeks in advance constitutes reasonable notice so as to enable Plaintiff to make

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arrangements to appear for her deposition as scheduled.

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Nevertheless, on February 4, 2014, Plaintiff sent an email to Defendants’ counsel stating

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that she was not available for her deposition on February 19, 2014, and would “not be available

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to discuss this matter until February 20, 2014.” Doc. 193-5. Plaintiff’s refusal, without

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providing any reason or explanation, to discuss the status of her deposition with Defendants’

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counsel until February 20, when the deposition of her husband, Michael Ioane, also a plaintiff in

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this case, is scheduled to take place, is unreasonable and possibly suggests that Plaintiff intends

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to delay her deposition so that it must occur after the deposition of Michael Ioane. See Doc. 193-

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3, pp. 5-7.

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The Notice of Deposition states that Plaintiff’s deposition will take place on February 19, 2014, at 9:00 a.m., at the
offices of Esquire Solutions, 155 East Shaw, Second Floor, Suite 201, Fresno, California 93710. Doc. 193-3.

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At no time did Plaintiff move the Court for a protective order under Rule 26(c) of the

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Federal Rules of Civil Procedure, to excuse her attendance at her deposition based on a showing

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of good cause. Rather, on February 6, 2014, Plaintiff filed a “Notice of Non-Availability” with

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the Court stating that she was “unavailable for depositions on February 19, 2014, at 9:00AM,

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because of pre-scheduled appointments.” Doc. 195, p. 1. Plaintiff stated that she was residing in

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Carson City, Nevada during the month of February, 2014. Plaintiff explained that although she

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was unavailable for her own deposition, she would travel back to California during the evening

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on February 19, 2014, in order to attend the deposition of her husband, Michael Ioane, on

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February 20, 2014, at Taft Correctional Institution in Taft, California. Plaintiff provided no

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details or explanation as to why she could not adjust her schedule to travel to California one day

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earlier, in order to attend her own properly-noticed deposition, other than to state in general

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terms that she had “meetings with clients” on February 19, 2014 in Carson City, Nevada. Doc.

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195. Plaintiff’s cursory and vague explanation is unpersuasive.

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After receipt of Plaintiff’s Notice of Non-Availability (which was sent separately to

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Defendants in addition to being filed with the Court), Defendants filed the instant motion to

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compel Plaintiff to attend her deposition. Doc. 193. Plaintiff filed an Opposition. Doc. 200.

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Plaintiff’s Opposition basically reiterates the points noted in her Notice of Non-Availability, and

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fails to provide additional details or evidence in support of her claims. The Court finds that

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Plaintiff’s generalized claims are inadequate and unpersuasive in terms of demonstrating good

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cause to excuse her presence at her deposition as noticed. Plaintiff does not state when the

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appointments at issue were made; what efforts, if any, she has made to re-schedule them; or why

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these appointments must be prioritized over her deposition in a case in which she is a plaintiff.

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The Court also finds troubling that Plaintiff did not attend the hearing on the motion to compel,

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despite the fact that the Court had not excused her appearance and had specifically permitted her,

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in advance, to appear telephonically. Doc. 194. Plaintiff’s vague and unsupported statement that

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“I am not available for the shortened hearing schedule of February 14, 2014, at 9:30 a.m.,

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because of previously scheduled events and appointments” does not excuse her presence at the

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hearing on the motion to compel. Doc. 200, p. 1. Given that Plaintiff did not attend the hearing,

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the Court was unable to obtain additional details from her regarding her reasons for being

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unavailable for her February 19, 2014 deposition, or to obtain additional, specific dates when she

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would be available for her deposition.

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For all the foregoing reasons, Defendants’ Motion to Compel is granted.

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ORDER
Given that Plaintiff’s deposition was properly and timely noticed, Defendants’ Motion to

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Compel is GRANTED. Plaintiff Shelly Ioane is ORDERED to attend her deposition as noticed

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by the Defendants, Doc. 193-3, on Wednesday, February 19, 2014 at 9:00 a.m. at the offices of

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Esquire Solutions, 155 East Shaw, Second Floor, Suite 201, Fresno, California 93710. Plaintiff

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is advised that failure to comply with the Court’s orders and to attend her deposition may result

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in the dismissal of her claims from this action and also subject her to the full range of discovery

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sanctions pursuant to Fed. R. Civ. P. 37(d).

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IT IS SO ORDERED.
Dated:

February 14, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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