Everflow Technology Corporation v. Millenium Electronics, Inc.

Filing 276

ORDER RE: DISCOVERY DISPUTE JOINT REPORTS 1 272 AND 3 274 . Signed by Magistrate Judge Howard R. Lloyd on 8/17/2012. (hrllc1, COURT STAFF) (Filed on 8/17/2012)

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** E-filed August 17, 2012 **

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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EVERFLOW TECHNOLOGY CORP.,
Plaintiff,

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v.

No. C07-05795 HRL
ORDER RE: DISCOVERY DISPUTES
JOINT REPORTS 1 AND 3

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MILLENNIUM ELECTRONICS, INC.; ET
AL.,

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Defendants.
____________________________________/

[Re: Docket Nos. 272, 274]

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Plaintiff Everflow Technology Corporation (“Everflow”) sold and delivered computer fans
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to defendant Millennium Electronics, Inc. (“MEI”). After MEI allegedly failed to pay for the fans,
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Everflow sued for breach of contract. Everflow later amended its complaint to include pro se
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defendants James and Melva Loro, MEI’s principals, Nadene Loro Snapp, the chief accounting
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officer for MEI, and a variety of other defendants, alleging that the Loros fraudulently transferred
approximately $1.3 million from MEI to themselves personally and to the accounts of the co-

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defendants, other entities they operate. Everflow also alleges that these other entities are essentially
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alter egos of the Loros.
After four years, this case is still in its early stages, with fact discovery not yet complete.

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Everflow now files two Discovery Dispute Joint Reports, pursuant to the undersigned’s Standing
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Order re: Civil Discovery Disputes, seeking to compel two of the defendants, Melva Loro and
Nadene Loro Snapp, to provide deposition testimony. Everflow contends that both defendants have

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cancelled or failed to appear numerous depositions. The defendants, who have not meaningfully

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participated in the production of these Discovery Dispute Joint Reports, apparently contend that

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they should not be required to be deposed because they lack counsel and because they believe

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plaintiff’s case lacks merit.

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DISCUSSION
A. Deposition of Melva Loro

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Everflow first attempted to depose defendant Melva Loro on June 19, 2009. Dk. No. 272

Loro claimed she had forgotten to take some medication that day and needed to go home to take it.

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Id. The parties agreed to resume the deposition that afternoon, but Loro did not return at the

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For the Northern District of California

(“DDJR 1”), p. 2). Loro appeared and the deposition began, but stopped after 75 minutes, when

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United States District Court

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appointed time. Id. Everflow contends that it re-noticed Loro’s deposition two times between

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September 2009 and March 2010, and that Loro “unilaterally cancelled” both of those depositions

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days before they were set to occur, blaming a back injury. Id. at 3. Earlier this year, Everflow

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renewed its efforts to depose Loro, who now refuses to appear because her attorney, David

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Chamberlin, apparently withdrew as counsel in February 2012 and she has yet to obtain new

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counsel. Id. The court notes that Chamberlin has not sought to withdraw as counsel of record.

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Everflow has attempted to schedule deposition at least three times in 2012, but Loro has cancelled

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each time, stating that she will not appear for any deposition until she obtains new counsel. Id.

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Everflow also contends that, despite Loro’s insistence that she has no counsel at this time, it was

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inadvertently copied on at least one recent email from Chamberlin to Loro regarding the current

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attempts to schedule deposition. Id. at 3-4.

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Loro argues that she should not be required to appear for deposition without counsel, and

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contends that Everflow’s counsel’s “condescending and chauvinistic” attitude toward her at the

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original deposition caused her to cry, go home, and accidentally smash her head into a wall, which

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she alleges caused the back injury that prevented her from attending the next two depositions

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scheduled by Everflow. Id. at 7. Loro also argues that Everflow should not be allowed to request

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that she be compelled to appear because so much time has passed since the original notice of

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deposition.

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A party may depose an opposing party without leave of court. Fed. R. Civ. P. 30(a)(1). “A

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deposition notice is all that is needed to require the attendance of parties at their depositions.”

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United States v. $ 160,066.98 from Bank of America, 202 F.R.D. 624, 627 (S.D. Cal. 2001). Fed. R.

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Civ. P. 37 permits a party to move to compel a deponent to answer questions. Fed. R. Civ. P.

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37(a)(3)(B)(i). Repeated last-minute cancellations of scheduled depositions have been held to

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constitute a “failure to appear.” Henry v. Gill Industries, Inc., 983 F.2d 943, 947 (9th Cir. 1993).

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Over three years have passed since Everflow first noticed Loro’s deposition. Everflow has

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repeatedly rescheduled Loro’s deposition at her request. Although Loro may have had legitimate

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reasons for wishing to continue her deposition, such as injury and her attempt to retain new counsel

For the Northern District of California

United States District Court

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(which she has apparently still not done), she cannot be permitted to stall litigation and waste the

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parties’ finite time to conduct discovery by continuing to refuse to make herself available for

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deposition. Lack of legal representation is no excuse, and Loro may not continue to refuse to be

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deposed based on her failure to obtain counsel. Loro’s argument that Everflow should be prohibited

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from seeking to compel her to be deposed due to her own repeated cancellations is unavailing.

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Accordingly, the court rules as follows: within thirty days, Melva Loro shall make herself

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available for a full day of deposition to answer Everflow’s questions, whether or not she has

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successfully obtained new counsel. At this deposition, Loro shall produce all responsive documents

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to the Requests for Production of Documents as requested in Everflow’s April 17, 2009 deposition

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notice, to the extent she has not already done so.

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B. Deposition of Nadene Loro Snapp
Everflow first noticed a deposition of Nadene Loro Snapp (“Snapp”) for February 9, 2012.

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Dkt. No. 274 (“DDJR 3”), p. 2. Snapp cancelled the deposition on February 8 through David

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Chamberlin, who is counsel of record for James and Melva Loro, but not for Snapp. Id. at 2-3.

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Everflow subsequently attempted to schedule two more depositions, in March and April 2012, but

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Snapp refused to attend either of these depositions. Id. at 3. Although Chamberlin has never been

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Snapp’s counsel of record, she has used Chamberlin’s unofficial withdrawal as counsel as a reason

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not to appear. Id. She refused to appear at the most recent deposition, which plaintiff’s counsel

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scheduled to take place in King City, CA, 75 miles from Snapp’s home and over 200 miles from

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Camarillo, CA, where plaintiff’s counsel is located, because she “feels intimidated and fearful if she

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has to drive to a far away place like King City.” Id. at 7. Snapp alleges that she told plaintiff she

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would not go to King City, and that she “appeared” for the most recent deposition at a location in

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San Jose, where, obviously, no other party appeared. Id. at 6.

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As stated above, a party may depose another party without leave of court upon reasonable

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notice. Fed. R. Civ. P. 37 permits a party to move to compel a deponent to answer questions. Fed. R.

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Civ. P. 37(a)(3)(B)(i). Repeated last-minute cancellations of scheduled depositions have been held

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to constitute a “failure to appear.” Henry, 983 F.2d at 947. Snapp’s repeated last-minute refusals to

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appear for deposition constitute a failure to appear. Her dislike of plaintiff’s chosen location and her

For the Northern District of California

United States District Court

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assertion that she lacks counsel to accompany her are not grounds for refusal to appear for

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deposition.

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Accordingly, the court rules as follows: within thirty days, Nadene Loro Snapp shall make

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herself available for a full day of deposition to answer Everflow’s questions, whether or not she has

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successfully obtained new counsel. At this deposition, Snapp shall produce all responsive

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documents to the Requests for Production of Documents as requested in Everflow’s April 27, 2012

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deposition notice, to the extent she has not already done so.

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C. Location for Depositions of Loro and Snapp
Both Loro and Snapp contend that any depositions should take place in San Jose, rather than

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Camarillo, CA or King City, CA. See DDJR 1 at 4 (requesting that Loro be made to appear in

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Camarillo); DDJR 3 at 4 (detailing plaintiff’s counsel’s efforts to schedule deposition in King City).

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Everflow’s counsel has also attempted to schedule depositions for both Loro and Snapp in San Jose,

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but the defendants have failed to appear for those depositions.

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While a court “may order a defendant to appear at any convenient place,” the general rule is

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that “‘a party seeking discovery must go where the desired witnesses are normally located.’” 202

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F.R.D. 624, 627 (quoting Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D. Mich. 1987)). Accordingly,

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the court ORDERS that the depositions of Loro and Snapp shall take place within this district.

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The fact that Loro and Snapp may not like the specific location chosen by plaintiff for the
deposition does not provide a valid basis for defendants to refuse to appear. “[T]here is no

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requirement in the Rules that the date or location must be agreed upon by all parities [sic].” Douglas

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v. Shasta County, 2010 U.S. Dist. LEXIS 24752, *6 (E.D. Cal. Mar. 3, 2010). So long as plaintiff

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notices the depositions within the district, defendants Loro and Snapp may not unilaterally cancel

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the depositions or refuse to appear based on their dislike of the location.

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Should Loro or Snapp fail to appear and submit to a full day of deposition as ordered herein,
plaintiff may notice a motion for sanctions pursuant to Fed. R. Civ. P. 37(d) and Civil L. R. 7-8.

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CONCLUSION

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Based on the foregoing, IT IS ORDERED THAT:

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1. Melva Loro and Nadene Loro Snapp shall make themselves available for deposition

For the Northern District of California

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within thirty days from the date of this order. In no event shall the depositions of Loro

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and Snapp occur after the current Fact Discovery Cutoff date of September 28, 2012.

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2. Loro and Snapp shall bring any responsive documents to the Requests for Production of

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Documents as requested in Everflow’s notices of deposition attached to DDJRs 1 and 3.

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3. The depositions shall take place within this district, at a location of Everflow’s choosing.

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IT IS SO ORDERED.

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Dated: August 17, 2012
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C07-05795 HRL Notice will be electronically mailed to:

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Mark M. Fang
William Short
Richard La Fleur
David Chamberlin
James Loro
Melva Loro

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[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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