Hupp v. San Diego County District Attorney et al

Filing 257

ORDER: (1)Granting 203 Defendants' Ex Parte Application to Modify the Scheduling Order; and (2) Granting Defendants' Motion to Compel Plaintiff's Deposition. Signed by Magistrate Judge Ruben B. Brooks on 5/13/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PAUL HUPP,

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Plaintiff,

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v.
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SAN DIEGO COUNTY, SAN DIEGO
POLICE DEPARTMENT, et al.,

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Defendants.
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Civil No. 12cv0492 GPC(RBB)
ORDER
(1) GRANTING DEFENDANTS’ EX
PARTE APPLICATION TO MODIFY
THE SCHEDULING ORDER [ECF NO.
203]; AND
(2) GRANTING DEFENDANTS’
MOTION TO COMPEL PLAINTIFF’S
DEPOSITION [ECF NO. 203
ATTACH. #1]

On December 4, 2013, Defendants County of San Diego, James

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Romo, Peter Myers, and Joseph Cargel filed an Ex Parte Motion to

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Modify The Scheduling Order by Extending the Deadline for

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Completing Discovery [ECF No. 203].

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Modify, Defendants sought a thirty-day extension of the November 4,

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2013 discovery cutoff date so a motion to compel the Plaintiff's

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deposition could be filed.

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No. 203.)

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Parte Motion.

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Hupp filed an opposition on December 11, 2013.

In their Ex Parte Motion to

(Defs.’ Ex Parte Mot. Modify 2-3, ECF

The motion to compel is attached to the Defendants’ Ex
(Id. Attach. #1 Mem. P. & A. 2-8.)

Plaintiff Paul

(See Pl. Hupp's

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12cv0492 GPC(RBB)

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Opp'n Br. 1, ECF No. 225.)

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on February 10, 2014 [ECF No. 230].

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The Defendants filed their reply brief

The Court has determined that Defendants' Ex Parte Motion to

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Modify and the accompanying Motion to Compel Plaintiff Paul Hupp's

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Deposition are suitable for resolution on the papers.

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Civ. R. 7.1(d)(1).

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S.D. Cal.

The Defendants acknowledge that the discovery cutoff for this

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case was November 4, 2013.

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203.)

(Defs.' Ex Parte Mot. Modify 2, ECF No.

"On October 15, 2013, Defendants noticed Plaintiff's

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deposition to take place on October 25, 2013 at 9:00 a.m."

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At the request of the codefendant City of San Diego, the deposition

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was renoticed for Friday, November 1, 2013, at 9:00 a.m.

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"On October 26, 2013, the Saturday before Plaintiff's deposition

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was scheduled to take place, Plaintiff notified Counsel, via email,

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that he would not be submitting to the deposition."

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"Plaintiff stated that the terms of his probation did not allow him

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to leave Riverside County."

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the deposition in Riverside County or contact Plaintiff's probation

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officer to explain the circumstances for traveling for the

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deposition.

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(See id.)

(Id.)

(Id.)

(Id.)

(Id.)

Defense counsel offered to take

Hupp would not agree to either.

(Id.)

Defense counsel planned to file a motion to compel Plaintiff's

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deposition on December 2, 2013, thirty days from the scheduled

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deposition date for which Plaintiff failed to appear.

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Because the discovery cutoff had passed, Defendants filed the

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pending application.

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(Id. at 3.)

Plaintiff opposes the Ex Parte Application to Modify.

Hupp

argues that Defendants "fail[ed] to timely seek a motion to

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12cv0492 GPC(RBB)

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compel."

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that an extension of time should not be granted.

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(Pl. Hupp's Opp'n Br. 4, ECF No. 225.)

Plaintiff asserts

To determine whether "good cause" exists to
extend time courts typically review, but are not
limited to, such factors as 1) scheduling issues;
2) past, present and current time demands and
commitments of the parties; 3) a party's assurances
that an extension of time will not unduly delay the
case; and last 4) the parties' good faith efforts
to "meet and confer" regarding the discovery issues
in a timely manner. DEFENDANTS fail to meet any of
the four (4) factors. In fact[,] DEFENDANTS have
not even tried to address these or any other factors
on why they should be entitled to extend time.

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(Id.)

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Plaintiff's unilateral refusal to appear for his deposition, and

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Defendants maintain that they believed a motion to compel the

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taking of Plaintiff's deposition could be filed within thirty days

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of Hupp's failure to appear for the deposition on November 1, 2013,

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although the discovery cutoff date was November 4, 2013.

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Ex Parte Appl. Modify Attach. #2 Decl. Welsh 3, ECF No. 203.)

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He is largely correct.

In essence, Defendants outline the

There are additional relevant facts.

(Defs.'

"[C]ourts consider a

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number of factors in determining whether to consider the merits of

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a motion to compel filed after expiration of the controlling

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deadline."

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§ 16.13[1][c], at 16-57 (3d. ed. 2013).

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relevant:

3 James Wm. Moore et al., Moore's Federal Practice
The following are

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The length of time since the expiration of the
deadline;

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The length of time that the moving party has known
about the discovery;

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Whether the discovery deadline has been extended;

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The explanation for the tardiness or delay;

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Whether dispositive motions have been scheduled or
filed;

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12cv0492 GPC(RBB)

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The age of the case;

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Any prejudice to the party from whom late discovery
was sought; and

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Disruption of the court's schedule.

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Id.
Defendants moved to extend time and compel discovery within

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thirty days of the discovery cutoff.

The ex parte application was

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brought within thirty days of the Plaintiff's failure to appear for

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his deposition.

The discovery cutoff in this case was set on March

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11, 2013, and has not been extended [ECF No. 118].

Dispositive

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motions have been heard and are pending [ECF 252].

The Complaint

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was filed on February 28, 2012.

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no prejudice to Plaintiff from participating in legitimate

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discovery.

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schedule in this case.

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Parte Application to Modify the Scheduling Order is granted.

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Consequently, Defendants’ motion to compel Plaintiff’s deposition

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will be resolved on its merits.

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(Compl. 1, ECF No. 1.)

There is

And a deposition can be set so as not to disrupt the
For all these reasons, the Defendants Ex

Defendants argue that "Plaintiff entirely fails to address any

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substantive reason why Defendants' Motion to Compel should be

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denied, or articulate any legally tenable argument that would

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obviate their legitimate need for his deposition, particularly in

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light of his willful failure to attend it when timely scheduled."

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(Defs.' Objection Hupp's Untimely Opp'n 3, ECF No. 230.)

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opposition, Hupp argues that Defendants “could have taken

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Plaintiff’s deposition in August, or September, [o]r October, [but]

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they did not.”

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not explain why his refusal to participate should be excused based

(Pl. Hupp's Opp'n Br. 3, ECF No. 225.)

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In his

Hupp does

12cv0492 GPC(RBB)

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on the fact that Defendants scheduled his deposition for November

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1, 2013, a date before the discovery deadline.

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complains that Defendants “could have easily submitted written

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discovery going back to March 2013, [but] they did not.”

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Additionally, he contends that Defendants’ motion to compel should

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be denied because the Court previously denied Hupp’s requests for

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extension of time to oppose Defendants’ substantive motion and also

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denied him leave to amend the complaint to add additional parties.

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(Id. at 3-4.)

Plaintiff also

(Id.)

These arguments are unavailing and irrelevant.

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Indeed, Hupp’s explanations for his conduct demonstrate that he

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acted in bad faith in refusing to attend his deposition.

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A party may take another party's duly noticed deposition in

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person as a matter of right.

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be examined fails to appear after being served with a proper notice

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of deposition, the court may make such orders concerning the

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failure as are just, including dismissal.

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37(b)(2)(C); see Connecticut Gen. Life Ins. Co. v. New Images of

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Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (willfulness,

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bad faith and fault in failing to comply with discovery orders

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justify the sanction of dismissal).

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sanctions, including dismissal, may issue for a complete or serious

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failure to respond to discovery, such as failure to appear for a

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deposition, even absent a prior court order compelling the

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discovery.

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Failure of a party to attend his own deposition may result in

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orders taking designated facts to be established, limiting claims

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or defenses or the introduction of evidence, or striking out

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pleadings, staying proceedings, dismissing the action, or rendering

Fed. R. Civ. P. 30.

If the party to

Fed. R. Civ. P.

It is established that

Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981).

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12cv0492 GPC(RBB)

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a default judgment.

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cancellation of a deposition a day before the date set has been

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held to constitute a failure to appear within the meaning of Fed.

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R. Civ. P. 37(d).

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(9th Cir. 1993).

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Fed. R. Civ. P. 37(d).

A deponent’s

Henry v. Gill Indus., Inc., 983 F.2d 943, 947

A plaintiff must prosecute his case with “reasonable

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diligence” to avoid dismissal.

Anderson v. Air West, Inc., 542

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F.2d 522, 524 (9th Cir. 1976).

Here, Hupp refused to attend his

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deposition and failed to provide the Court or Defendants any valid

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reason he could not attend.

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Plaintiff's version of the events in order to properly to evaluate

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the case and their trial strategy.

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Motion to Compel Plaintiff's Deposition is granted.

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is to take place on or before June 13, 2014, and is limited to

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seven hours.

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the deposition may lead to dismissal of his case for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b),

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failure to comply with a court order under Federal Rule of Civil

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Procedure 37(b), and failure to attend his deposition under Federal

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Rule of Civil Procedure 37(d).

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07–5958 SBA (PR), 2011 WL 1225946, at *17 (N.D. Cal. Mar. 31,

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2011).

The deposition

The Court cautions Plaintiff that failure to complete

See Goldstein v. Sillen, No. CV

Dated: May 13, 2014

______________________________
Ruben B. Brooks
United States Magistrate Judge

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Accordingly, the Defendants'

IT IS SO ORDERED.

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Defendants are entitled to discover

cc:

Judge Curiel
All Parties of Record

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I:\Chambers Brooks\CASES\_1983\HUPP0492\Order re Motion to Compel Depo 2.wpd

12cv0492 GPC(RBB)