Scott v. Palmer et al

Filing 174

ORDER (1) DISREGARDING SURREPLY, (2) DENYING MOTION TO STRIKE AS MOOT, (3) GRANTING DEFENDANTS MOTION TO COMPEL PLAINTIFFS DEPOSITION, AND (4) DIRECTING DEFENDANTS TO FILE NOTICE OF REASONABLE EXPENSES INCURRED WITHIN TWENTY DAYS re 133 , 144 , 145 signed by Magistrate Judge Sheila K. Oberto on 11/25/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FLOYD SCOTT,
Plaintiff,

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v.

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J. PALMER, et al.,
Defendants.

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Case No. 1:09-cv-01329-LJO-SKO (PC)
ORDER (1) DISREGARDING SURREPLY,
(2) DENYING MOTION TO STRIKE AS
MOOT, (3) GRANTING DEFENDANTS’
MOTION TO COMPEL PLAINTIFF’S
DEPOSITION, AND (4) DIRECTING
DEFENDANTS TO FILE NOTICE OF
REASONABLE EXPENSES INCURRED
WITHIN TWENTY DAYS

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(Docs. 133, 144, and 145)
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_____________________________________/
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18 I.

Procedural History

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Plaintiff Floyd Scott, a state prisoner proceeding pro se and in forma pauperis, filed this

20 civil rights action pursuant to 42 U.S.C. § 1983 on July 29, 2009. Pending before the Court is
21 Defendants’ motion to compel Plaintiff’s deposition, or in the alternative for terminating
22 sanctions, filed on March 12, 2013. Fed. R. Civ. P. 37. (Doc. 133.) Plaintiff filed an opposition
23 on March 29, 2013, and Defendants filed a reply on April 8, 2013. (Docs. 140, 142.) Plaintiff
24 then filed a surreply on April 29, 2013, and Defendants filed a motion to strike the surreply on
25 May 3, 2013. (Docs. 144, 145.)
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Parties do not have the right to file surreplies and motions are deemed submitted when the

27 time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file
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1 a surreply with disfavor,1 Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1
2 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D.
3 Ga. 2005)), although courts have the discretion to either permit or preclude a surreply, see U.S. ex
4 rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not
5 abuse discretion in refusing to permit “inequitable surreply”); JG v. Douglas County School Dist.,
6 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to
7 file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478,
8 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant
9 an opportunity to respond). As explained below, because Plaintiff’s failure to testify at his
10 deposition does not entitle Defendants to terminating sanctions, the Court does not reach their
11 alternative argument for dismissal. Estrada v. Rowland, 69 F.3d 405, 406 (9th Cir. 1995). As a
12 result, it is unnecessary to consider Plaintiff’s surreply, which addresses what he contends are new
13 arguments made by Defendants in their reply regarding terminating sanctions.2 Accordingly,
14 Plaintiff’s surreply is disregarded and Defendants’ motion to strike the surreply is denied as moot.
15 II.

Discussion

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A.

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Pursuant to the discovery and scheduling order, Defendants are entitled to depose Plaintiff

Background

18 so long as they serve, by mail, a notice in compliance with Rule 30 at least fourteen days before
19 the deposition. Fed. R. Civ. P. 5(b)(2)(C), 30(b)(1). (Doc. 35.) On February 8, 2013, Defendants
20 filed a request for leave to depose Plaintiff by videoconference, and on February 12, 2013,
21 Defendants served on Plaintiff, by mail, a notice that his deposition was set for February 26, 2013.
22 (Doc. 111; Doc. 120, 2:4-6.) Plaintiff filed an opposition to the videoconference request on
23 February 22, 2013, and on that date, the Court granted the videoconference request and overruled
24 Plaintiff’s objection. (Docs. 120, 123, 124.)
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Plaintiff’s surreply was not accompanied by a motion seeking leave to file it, but the surreply did include his reason
for filing it.
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Plaintiff’s arguments concerning his reasons for refusing to answer questions at his deposition were fully briefed
between the motion and the opposition, and the Court declines to consider any further arguments on that issue in a
surreply.

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On February 26, 2013, Defendants’ counsel attempted to depose Plaintiff by

2 videoconference, but he refused to answer any questions on the ground that he did not receive the
3 deposition notice at least fourteen days prior to the deposition. Defendants now move to compel
4 Plaintiff’s deposition at his expense or, in the alternative, for terminating sanctions. Plaintiff
5 opposes the motion on the same basis: he did not receive the deposition notice at least fourteen
6 days before the date of the deposition. Plaintiff also argues he did not receive notice from the
7 Court regarding his deposition appearance.
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B.

Date of Service, Prison Mailbox Rule, and Notice by Court Order
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Date of Service by Mail

Plaintiff argues that Defendants were required to make sure he received the deposition

11 notice in hand at least fourteen days before the deposition date.

However, Plaintiff’s

12 interpretations of the legal service date and the prison mailbox rule, and their effect on the
13 fourteen-day deposition notice requirement, are incorrect.
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Turning first to date of service, Plaintiff was previously informed that the date of service is

15 the date of mailing, which is set forth in the certificate of service attached to the document mailed;
16 the date of service is not the date prison officials hand Plaintiff his incoming mail. Fed. R. Civ. P.
17 5(b)((2)(C) (service by mail is complete upon mailing). Moreover, Rule 6(d) does not entitle
18 Plaintiff to add three days to the fourteen-day deposition notice requirement and claim that it must
19 be handed to him at least seventeen days before his deposition, as he argues. Fed. R. Civ. P. 6(d).
20 Rule 6(d) provides that when a party may or must act within a specified time after service, three
21 days are added after the period would otherwise expire. Fed. R. Civ. P. 6(d). Rule 6 applies to
22 actions Plaintiff must or may take, such as responding to a court order requiring him to do
23 something or responding to a motion filed by Defendants. It does not apply to a deposition notice
24 served on Plaintiff and any argument to the contrary is untenable.
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2.

Prison Mailbox Rule

Under the prison mailbox rule, the date of filing is the date a prisoner delivers his legal

27 document to prison officials for mailing to the court. Douglas v. Noelle, 567 F.3d 1103, 1106-07
28 (9th Cir. 2009) (citing Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379 (1988)) (quotation
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1 marks omitted). The policies underpinning the rule are prisoners’ lack control over the method of
2 mailing, prisoners’ lack of ability to monitor the court’s receipt of their filings, and prison
3 officials’ incentive to delay prisoners’ filings. Douglas, 567 F.3d at 1106-07 (citing Houston, 487
4 U.S. at 270-71) (quotation marks omitted). The prison mailbox rule applies to outgoing legal
5 filings or documents sent by Plaintiff, not to incoming legal filings or documents served on
6 Plaintiff. Id. While there may be some delay inherent in the receipt of mail in an institutional
7 setting, the prison mailbox rule, by its very terms and underlying policies, does not apply to
8 Plaintiff’s receipt of incoming mail from Defendants and does not affect the date of legal service
9 of documents on Plaintiff. See Hernandez v. Spearman, 764 F.3d 1071, 1074-76 (9th Cir. 2014)
10 (discussing requirements of and purpose underlying prison mailbox rule).
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3.

Notice by Court Order

Finally, Plaintiff’s assertion that in other litigation, courts have always issued an order to

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13 appear and he did not receive one until February 26, 2013, provides no excuse. The order referred
14 to by Plaintiff was not an order to appear for his deposition but an order overruling his objection to
15 being deposed. A party who is served with a deposition notice that complies with Rule 30(b) is
16 obligated to appear and testify, and that obligation does not depend on the deposing party securing
17 a court order. Fed. R. Civ. P. 30(b). As discussed below, even where there exist grounds
18 supporting a motion for a protective order,3 Fed. R. Civ. P. 26(c), the mere filing of the motion for
19 a protective order does not relieve the deponent from appearing for or testifying at the deposition,
20 Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964). Thus, Plaintiff’s
21 argument that he was awaiting and had not yet received an order to appear for his deposition is
22 unavailing.
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C.

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Motion to Compel or for Terminating Sanctions
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Failure to Testify at Deposition

Turning to what occurred on February 26, 2013, where a deponent appears for his

26 deposition but refuses to answer questions, the proper remedy is a court order to testify. Fed. R.
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Here, the grounds upon which Plaintiff resisted answering questions at his deposition lacked merit and would not
have constituted good cause in support of a protective order. Fed. R. Civ.P. 26(c)(1).

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1 Civ. P. 37(a)(3); Estrada 69 F.3d at 406. Terminating sanctions are not available at this juncture.4
2 Fed. R. Civ. P. 37(a)(3); Estrada, 69 F.3d at 406. In this case, the Court did not issue an order
3 relieving Plaintiff from being deposed and Plaintiff refused to answer questions at his deposition,
4 entitling Defendants to an order compelling him to submit to his deposition. Fed. R. Civ. P.
5 37(a)(3); Estrada, 69 F.3d at 406.
Plaintiff’s attempt to excuse his refusal to answer questions based on his non-receipt of the

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7 order denying his objection provides no shelter for Plaintiff. As previously discussed, Plaintiff’s
8 receipt of an order in hand does not dictate the date of legal service but more to the point here, the
9 filing of a motion seeking relief from a deposition does not relieve the deponent from being
10 deposed. Pioche Mines Consol., Inc., 333 F.2d at 269. The view that a party need not appear if a
11 motion is on file “would be an intolerable clog upon the discovery process.” Id. “Rule [26(c)]
12 places the burden on the proposed deponent to get an order, not just to make a motion.”5 Id.
13 Thus, even if Plaintiff’s objection was treated, charitably, as a motion for a protective order, the
14 duty to appear and cooperate remained until and unless the Courts granted the motion for relief
15 from the deposition. Id.
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2.

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Reasonable Costs Incurred in Bringing Motion

As the prevailing parties on their motion to compel, Defendants are entitled to the

18 reasonable expenses incurred in making the motion. Fed. R. Civ. P. 37(a)(5)(A). Defendants are
19 not entitled to recoup the cost incurred in attempting to take the deposition given that Plaintiff did
20 not fail to appear and did not violate a court order compelling his deposition.6 Fed. R. Civ. P.
21 37(b), (d). Accordingly, Defendants shall file a notice setting forth the reasonable expenses
22 incurred in bringing their motion to compel within twenty days, and Plaintiff shall have thirty days
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The failure to appear for a deposition and/or the failure to comply with a court order compelling a deposition will
support terminating sanctions. Fed. R. Civ. P. 37(b), (d). However, neither the order overruling Plaintiff’s objection
nor the order granting leave to depose Plaintiff by videoconference constituted an order compelling Plaintiff’s
deposition.
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At the time the Pioche decision was issued, Rule 30(b) addressed protective orders. Fed. R. Civ. P. 30(b) Advisory
Committee Notes, 1970 Amendments. The language was subsequently transferred to Rule 26(c). Id.
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However, any failure to cooperate at the deposition in contravention of this order will be sanctionable conduct. Fed.
R. Civ. P. 37(b).

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1 from the date of service of the notice to be heard on the issue of expenses. Fed. R. Civ. P.
2 37(a)(5)(A).
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D.

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Finally, during the course of counsel’s attempt to depose Plaintiff, the record well reflects

Profanity Toward Counsel During Deposition Attempt

5 his uncooperativeness and unreasonableness, and at one point, he told counsel to “shut the fuck
6 up.” (MTC, Doc. 133-3, Depo. Tx., court record p. 13, ln. 15.) The use of profanity toward
7 counsel, or any other abusive conduct, is unacceptable and it is grounds for sanctions, including
8 terminating sanctions. Plaintiff’s pro se status will not shield him from the consequences of
9 abusive behavior, and he is required to behave with civility.
10 III.

Order

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

Plaintiff’s surreply is disregarded and Defendants’ motion to strike the surreply is

13 DENIED as moot (docs. 144 and 145);
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2.

Defendants’ motion to compel Plaintiff’s deposition is GRANTED (doc. 133);

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3.

Plaintiff is required to appear for and testify at his deposition, which may be

16 conducted in person or by videoconference;
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4.

Within twenty (20) days from the date of service of this order, Defendants shall

18 file a notice setting forth the reasonable expenses incurred in bringing their motion to compel; and
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Plaintiff has thirty (30) days from the date of service of Defendants’ notice of

20 reasonable expenses within which to file a response.
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IT IS SO ORDERED.
Dated:

November 25, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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