Ford v. Sinklier et al

Filing 45

ORDER Granting 33 Defendants' Motion to Compel, Denying Motion for Sanctions, and Granting 41 Motion to Modify Scheduling Order. Plaintiff is ordered to attend and participate in a properly noticed deposition held before the extended deadli ne of 6/15/2018. However, because Plaintiff is an indigent prisoner, the Court hereby denies Defendants' motion for monetary sanctions. Signed by Magistrate Judge Peter C. Lewis on 3/29/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DARREN VINCENT FORD,

Case No.: 3:17-cv-00307-BAS-PCL
Plaintiff,

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v.

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ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL, DENYING
MOTION FOR SANCTIONS, AND
GRANTING MOTION TO MODIFY
SCHEDULING ORDER

G. SINKLIER, et al.,

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Defendants.

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[Docs. 33, 41]

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I. INTRODUCTION

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Before the Court now is Defendants’ motion to compel Plaintiff’s deposition and

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for sanctions resulting in Plaintiff’s refusal to attend his properly noticed deposition on

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February 13, 2018, and Defendants’ motion to modify the scheduling order. (Docs. 33,

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41.) Defendants moved ex parte for the Court’s leave to take Plaintiff’s deposition. (Doc.

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28.) The Court granted this request. (Doc. 30.) The day after the Court’s granting this

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request, Plaintiff was served with notice of his deposition, to be held on February 13,

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2018, at 9:30 a.m. via video conference. (Doc. 33-3 at 4-6.)

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On February 13, 2018, however, when Plaintiff was approached by a correctional

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officer to be escorted to the deposition, Plaintiff refused. (Doc. 33-1 at 2.) Plaintiff, in a

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later document filed with the Court, stated he was under the impression a public defender
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would be representing him at the deposition. (Doc. 37 at 1.) Without such representation,

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Plaintiff refused to attend the deposition. (Id.) Defendants note that Plaintiff stated at the

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time of the attempted escort that Plaintiff was refusing to attend the deposition because

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his counsel had not been noticed and therefore would not be attending. (Doc. 33-1 at 2.)

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Plaintiff later conceded his belief that the public defender would represent him was

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misinformed. (Doc. 37.)

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II. MOTION TO COMPEL

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From the filing of his complaint to the present, Plaintiff has been proceeding in this
matter pro se. (See, e.g., Doc. 1.) In doing so, Plaintiff undertook his own representation

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and was not to rely upon any other person to represent him in this case. See Davis v.

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Colvin, 2014 U.S. Dist. LEXIS 198312 at *11 (N.D. Cal. Feb. 18, 2014). Because

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Plaintiff was proceeding pro se, his purported reasoning for not attending his deposition –

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that his counsel had not been noticed – was improper. In fact, Plaintiff was his own

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counsel, and certainly Plaintiff had been noticed of his own deposition. (See Doc. 33-3 at

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4-6.)

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To proceed with this action, Plaintiff must cooperate in discovery, including being

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deposed. Thus, the factors of timeliness, good cause, utility, and materiality weigh in

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favor of granting Defendants’ motion to compel Plaintiff’s deposition. See CSC

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Holdings, Inc. v. Redisi, 309 F.3d 988, 993 (7th Cir. 2002); Fed. R. Civ. P. 37(a)(3)(B)(i),

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37 (d)(1)(A)(i). Therefore, Defendants’ motion to compel Plaintiff’s deposition is

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GRANTED.

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III. MOTION FOR SANCTIONS

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Defendants’ further moved for sanctions in the amount of $635.00, the cost of

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attempting to take Plaintiff’s deposition. (Doc. 33-1 at 3-4.) Defendants seek only these

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monetary sanctions in their motion. Plaintiff, however, is an indigent prisoner, who is

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proceeding in this case in forma pauperis as a result of his indigent status. (Doc. 3 at 4.)

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The payment of expenses incurred by the party seeking discovery, here the

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Defendants attempting to take Plaintiff’s deposition, is enumerated as a specific sanction
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available. Fed. R. Civ. P. 37 (a)(5). However, a court “must not order” this particular

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sanction if there are circumstances which make an award of expenses unjust. Fed. R. Civ.

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P. 37(a)(5)(A)(iii). Because Plaintiff is an indigent prisoner, proceeding in forma

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pauperis, the Court finds an imposition of this type of monetary sanction would be unjust

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because Plaintiff would not be able to pay the sanction amount. See Diaz v. Fox, 2017

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U.S. Dist. LEXIS 186382 at *31 (E.D. Cal. Nov. 9, 2017) (“In light of [plaintiff’s] status

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as an incarcerated plaintiff proceeding pro se and in forma pauperis, the court declines to

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award [monetary] sanctions at this time.”) Given Plaintiff’s inability to pay any imposed

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monetary sanction, the Court DENIES Defendants’ motion for such sanction.

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IV. MOTION TO MODIFY SCHEDULING ORDER

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Finally, on March 23, 2018, Defendants’ brought a motion to modify the

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scheduling order based on Plaintiff’s refusal to participate in his deposition. (Doc. 41.)

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Therein, Defendants request the deadline to depose Plaintiff be extended to June 15,

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2018, and the motion deadline be extended to July 15, 2018. (Id. at 2.) Defendants base

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this motion upon defense counsel’s schedule which now conflicts with imminent

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discovery in this case as Plaintiff refused to attend his deposition. (Doc. 41-1 at 2.)

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However, Defendants contend they will continue to go forward with the settlement

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conference currently scheduled for April 16, 2018. (Id.) Good cause appearing, the Court

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GRANTS this motion to so modify the scheduling order.

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V. CONCLUSION
The Court hereby GRANTS Defendants’ motion to compel Plaintiff’s deposition,

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and Defendants’ subsequent motion to modify the scheduling order. Accordingly,

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Plaintiff is ordered to attend and participate in a properly noticed deposition held before

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the extended deadline of June 15, 2018. However, because Plaintiff is an indigent

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prisoner, the Court hereby DENIES Defendants’ motion for monetary sanctions.

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//

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//

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//
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IT IS SO ORDERED.
Dated: March 29, 2018

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