Estorga v. Santa Clara Valley Transportation Authority
Filing
98
ORDER COMPELLING DEPOSITIONS OF PLAINTIFFS SMITH AND JOVEL; GRANTING 87 MOTION FOR SANCTIONS AS TO PLAINTIFFS SMITH AND JOVEL. Signed by Judge Beth Labson Freeman on 10/4/2018. (blflc3S, COURT STAFF) (Filed on 10/4/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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ROBERT ESTORGA,
Plaintiff,
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v.
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SANTA CLARA VALLEY
TRANSPORTATION AUTHORITY,
Defendant.
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ORDER COMPELLING DEPOSITIONS
OF PLAINTIFFS SMITH AND JOVEL;
GRANTING MOTION FOR
SANCTIONS AS TO PLAINTIFFS
SMITH AND JOVEL
[Re: ECF 87]
Before the Court is Defendant Santa Clara Valley Transportation Authority’s
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United States District Court
Northern District of California
Case No. 16-cv-02668-BLF
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(“Defendant”) Motion for Dismissal with Prejudice of Plaintiffs Smith, Williams, Cadimas-Rosa,
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Jovel, and Gomez (“Plaintiffs”) and/or Sanctions. Mot., ECF 87. These five plaintiffs are bus
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operators either employed or formerly employed by Defendant and compose part of the larger
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group of plaintiffs in this matter. Id. at 3. Defendant requests dismissal or sanctions due to
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Plaintiffs’ failure “to appear for [noticed] depositions.” Id. at 2–3.
Prior to the motion hearing (“Hearing”) on October 4, 2018, Defendant withdrew Plaintiff
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Williams from the motion, see ECF 95, and the parties stipulated to dismiss with prejudice
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Plaintiff Gomez from the action, see ECF 96. In addition, on the record at the motion hearing on
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October 4, 2018, the parties agreed that Plaintiff Cadimas-Rosa would be voluntarily dismissed
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with prejudice from the action, without sanctions, per subsequent filing. Thus, the Court’s present
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order concerns only Plaintiffs Smith and Jovel.
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I.
PLAINTIFF SMITH
Defendant asserts that it properly noticed Plaintiff Smith (“Smith”) for deposition, and that
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Smith (through her attorney) claimed she was unable to attend the scheduled deposition, and did
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not provide alternative dates, despite repeated offers by Defendant. Mot. at 2. Counsel for
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plaintiff notes that Smith lives in Las Vegas, Nevada, and that she only worked for Defendant for
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a few days. Opp. at 3, ECF 88. On the record at the Hearing, counsel for plaintiff further
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indicated that Smith had moved to a new address in the Las Vegas area.
As stated on the record at the Hearing, the Court declines to dismiss Plaintiff Smith from
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the case. Defendant has not demonstrated that Smith engaged in “repeated and flagrant” discovery
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abuses that would warrant dismissal. See Henry v. Gill Industries, Inc., 983 F.2d 943, 946 (9th
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Cir. 1993). However, the Court hereby COMPELS the deposition of Plaintiff Smith, to take
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place telephonically on Tuesday, October 9, 2018, with Plaintiff Smith to appear at a location
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within a reasonable distance of her place of residence, not to exceed 50 miles. In addition, as
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stated on the record at the Hearing, the Court hereby AWARDS sanctions for attorney’s fees
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against Plaintiff Smith in the amount of $600, for failure to appear at the previously noticed
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deposition and failure to reasonably participate in discovery. See also Defendant’s Decl. ¶ 20
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United States District Court
Northern District of California
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(outlining costs to Defendant), ECF 87-1. Said sanctions are due and payable to Defendant Santa
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Clara Valley Transportation Agency within 14 days.
If Plaintiff Smith fails to appear at the deposition on October 9, 2018, absent withdrawal
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from the case or justifiable excuse, the Court may consider dismissal or further sanctions. Counsel
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for plaintiff is to provide Smith with written notice of the Court’s present order and Smith’s
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upcoming deposition on October 9, 2018. If counsel for plaintiff is unable to contact Smith,
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counsel for plaintiff is directed to notify Defendant no later than 24 hours prior to the deposition
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start time on October 9, 2018.
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II.
PLAINTIFF JOVEL
Defendant also asserts that it properly noticed Plaintiff Jovel (“Jovel”) for deposition, and
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that Jovel (through her attorney) claimed she was unable to attend the scheduled deposition, and
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did not provide alternative dates, despite repeated offers by Defendant. Mot. at 2. Jovel has
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indicated that she may wish to withdraw from the lawsuit. Id. However, on the record at the
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Hearing, counsel for plaintiff noted that there has been no contact with Jovel since prior to
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Defendant’s filing of the present motion.
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The Court declines to dismiss Plaintiff Jovel from the case. Defendant has not
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demonstrated that Jovel engaged in “repeated and flagrant” discovery abuses that would warrant
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dismissal. See Henry, 983 F.2d at 946. However, the Court hereby COMPELS the deposition of
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Plaintiff Jovel, to take place telephonically on Tuesday, October 9, 2018. In addition, as stated
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on the record at the Hearing, the Court hereby AWARDS sanctions for attorney’s fees against
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Plaintiff Jovel in the amount of $600, for failure to appear at the previously noticed deposition
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and failure to reasonably participate in discovery. See also Defendant’s Decl. ¶ 20 (outlining costs
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to Defendant), ECF 87-1. Said sanctions are due and payable to Defendant Santa Clara Valley
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Transportation Agency within 14 days.
If Plaintiff Jovel fails to appear at the deposition on October 9, 2018, absent withdrawal
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from the case or justifiable excuse, the Court may consider dismissal or further sanctions. Counsel
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for plaintiff is to provide Jovel with written notice of the Court’s present order and Jovel’s
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upcoming deposition on October 9, 2018. If counsel for plaintiff is unable to contact Jovel,
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United States District Court
Northern District of California
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counsel for plaintiff is directed to notify Defendant no later than 24 hours prior to the deposition
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start time on October 9, 2018.
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III.
CONCLUSION
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For the foregoing reasons, the Court rules as follows:
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1. The Court COMPELS the telephonic deposition of Plaintiff Smith on Tuesday,
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October 9, 2018. The Court further AWARDS sanctions against Plaintiff Smith in the
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amount of $600.
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2. The Court COMPELS the telephonic deposition of Plaintiff Jovel on Tuesday, October
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9, 2018. The Court further AWARDS sanctions against Plaintiff Jovel in the amount
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of $600.
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3. Failure to comply with the Court’s present order may result in dismissal with prejudice
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or further sanctions. Counsel for plaintiff is directed to notify Defendant no later than
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24 hours before the depositions on October 9, 2018, if counsel for plaintiff is unable to
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contact Smith or Jovel.
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IT IS SO ORDERED.
Dated: October 4, 2018
______________________________________
BETH LABSON FREEMAN
United States District Judge
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