Allen v. Reynoso

Filing 20

Order, signed 3/31/17, by Chief Magistrate Judge Joseph C. Spero denying 19 Motion to the Court to Stop the Defendant from taking Allen Deposition filed by Kevin Allen.(klhS, COURT STAFF) (Filed on 3/31/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN ALLEN,

United States District Court
Northern District of California

Plaintiff,
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v.
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R. REYNOSO,

Case No. 16-cv-05289-JCS (PR)
ORDER DENYING MOTION TO
PREVENT DEPOSITION OF
PLAINTIFF

Defendant.
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Dkt. No. 19

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Plaintiff’s motion “to stop the defendant from taking Allen[’s] deposition” (Dkt.

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No. 19) is DENIED. Contrary to plaintiff’s belief, defendant does not need a court order

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to depose him, as noted in the order of service: “Discovery may be taken in accordance

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with the Federal Rules of Civil Procedure. No further court order under Federal Rule of

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Civil Procedure 30(a)(2) or Local Rule 16-1 is required before the parties may conduct

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discovery.” (Dkt. No. 10 at 3.)

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Plaintiff may be subject to sanctions if he refuses to be deposed. Under Federal

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Rule of Civil Procedure 37(d), a party may be subject to dismissal or lesser sanctions if the

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party fails, after being served with proper notice, to appear for that person’s deposition.

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Under Federal Rule of Civil Procedure 37(b), once the court orders a deponent to be sworn

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or to answer a question and the deponent fails to obey, that failure “may be treated as

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contempt of court.” The sanctions that may be imposed on a party for failing to appear for

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a deposition or for disobeying a court order a deponent to be sworn and/or answer

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questions, include the following: the disobedient party may be prohibited “from

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supporting or opposing designated claims or defenses, or from introducing designated

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matters in evidence,” pleadings may be stricken, and the action may be dismissed in whole

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or in part. See Fed. R. Civ. P. 37(b)(2)(A). The disobedient party also may be ordered to

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pay “the reasonable expenses, including attorney’s fees, caused by the failure, unless the

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failure was substantially justified or other circumstances make an award of expenses

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unjust.” Fed. R. Civ. P. 37(b)(2)(C).

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Plaintiff is now warned that he may be sanctioned if he does not appear at his
deposition and/or testify at that deposition. The sanctions that may be imposed include,

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United States District Court
Northern District of California

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without limitation, the dismissal of some or all of plaintiff’s claims, an order prohibiting

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him from supporting his claims with any evidence (including testimony or declarations),

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and monetary sanctions.

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Plaintiff is now informed that, to the extent he does not want to answer questions

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based on a reasonable fear of self-incrimination in a criminal case, he can invoke his Fifth

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Amendment rights, but should note that an adverse inference may be drawn in this civil

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action from the invocation of such rights. See Baxter v. Palmigiano, 425 U.S. 308, 318-19

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(1976).

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The Clerk shall terminate Dkt. No. 19.

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IT IS SO ORDERED.

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Dated: March 31, 2017
_________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN ALLEN,

Case No. 16-cv-05289-JCS

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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R. REYNOSO,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on March 31, 2017, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kevin Allen ID: K-41879
Kern Valley State Prison
P.O. Box 5101
Delano, CA 93216

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Dated: March 31, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Karen Hom, Deputy Clerk to the
Honorable JOSEPH C. SPERO

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