Maksoud v. Hopkins et al

Filing 105

ORDER Granting 102 Defendant Tirrell Payton's Ex Parte Motion to Compel. Signed by Magistrate Judge William V. Gallo on 8/24/2018. (sjm)

1
2
3

UNITED STATES DISTRICT COURT

4

SOUTHERN DISTRICT OF CALIFORNIA

5
6

DR. CHARBEL MAKSOUD,

Case No.: 17-CV-362-H(WVG)
Plaintiff,

7
8

v.

9

HOPKINS et al.,
Defendants.

10

ORDER GRANTING DEFENDANT
TIRRELL PAYTON’S EX PARTE
MOTION TO COMPEL
[Doc. No. 102.]

11
12

Pending before the Court is Defendant Tirrell Payton’s ex parte motion to compel

13

the deposition of Plaintiff in San Diego, which the Court authorized to be filed on an ex

14

parte basis. (Doc. No. 102.) Plaintiff filed an opposition. (Doc. No. 103.) The Court

15

finds the matter suitable for decision without oral argument and GRANTS the motion.1

16
17
18
19
20
21
22
23
24
25
26
27
28

1

In his opposition to Payton’s motion, Plaintiff requests Defendant Guelton be compelled
to sit for deposition in San Diego. This request could not be more violative of this Court’s
discovery dispute procedures. As an initial matter, Plaintiff presents it the day after the
fact discovery deadline expired, and no extension of that deadline was sought in this case.
Second, it is being presented in an opposition to an ex parte motion on a wholly unrelated
matter. It was not authorized to be filed by this Court as set forth in section VI of its Civil
Chambers Rules. Third, this dispute was not presented via a joint telephone call to
chambers as section IV(B) of the Chambers Rules require. Fourth, although counsel
exchanged emails, they did not engage in the telephonic meet and confer efforts that section
IV(A) of the Chambers Rules requires. As Plaintiff’s own papers demonstrate, Plaintiff
was aware as early as August 9 that Guelton would not appear for his August 16 deposition.
Although Plaintiff’s counsel tried to raise this dispute during the August 20, 2018 discovery
conference on an unrelated dispute, none of these procedures had been followed. Fact
discovery is now closed, and the Court does not construe this as a request under Rule 56.
The Rule 56 motion is not pending before this Court. For all these reasons, the Court
declines to consider this dispute.

1
17-CV-362-H(WVG)

1

On June 25, 2018, Payton noticed Plaintiff’s deposition for August 22, 2018 in San

2

Diego, California. Plaintiff’s counsel provided Payton’s counsel notice of non-attendance

3

two days before the scheduled deposition. Plaintiff resides in Joplin, Missouri and did not

4

attend the deposition. The fact discovery deadline in this case passed on August 22, 2018

5

without any extension requests. Payton now moves to compel Plaintiff’s deposition and

6

asks that it proceed in San Diego, California. All counsel are located either in San Diego

7

or the Southern California region.

8

During meet and confer emails, Plaintiff requested that Payton provide authority for

9

taking his deposition in San Diego rather than Missouri. Notwithstanding the requests,

10

Plaintiff never directly opposed sitting for deposition in San Diego, stating only that it

11

would be “inconvenient.” Plaintiff has now unequivocally agreed to appear in San Diego

12

for his deposition—but in September, after fact discovery has concluded. In his opposition

13

to Payton’s ex parte motion, he contends that location of the deposition is moot since he

14

has agreed to travel to San Diego.2 (Doc. Nos. 103 at 3 (“In e-mail communications

15

between counsel for Plaintiff and counsel for Defendant on August 22, 2018, counsel for

16

Plaintiff agreed to produce Plaintiff for deposition in San Diego in September. Such

17

agreement was reiterated in several phone conversations between counsel for Plaintiff and

18

counsel for Defendant. Defendant’s contentions in the Ex Parte Application as to the

19

proper location for the deposition to occur are therefore moot.”) (citations omitted); 103-1

20

at ¶ 4 (“Subsequently, in phone conversations leading up to and around August 22, 2018,

21

and in emails that day, we agreed to produce Plaintiff for a deposition location in San

22

Diego. This offer was affirmed in e-mails between me and counsel for Defendant Tirrell

23

Payton.”).

24
25
26
27
28

2

While the location of Plaintiff’s deposition may be moot, the taking of that deposition
after the fact discovery deadline is not. Because the fact discovery cutoff has now passed,
Payton may not take Plaintiff’s deposition without the Court granting him relief from this
expired deadline.
2
17-CV-362-H(WVG)

1

The Court need not decide whether Payton could have compelled Plaintiff’s

2

deposition in San Diego. Given Plaintiff’s commitment to travel here, the Court agrees

3

that the proper location for Plaintiff’s deposition is San Diego and would have so found.3

4

Given that this dispute was properly presented to the Court and was presented within the

5

fact discovery period, the Court further finds it proper to grant Tirrell Payton relief from

6

the fact discovery deadline for the specific and limited purpose of taking Plaintiff’s

7

deposition. The discovery deadline is accordingly extended to September 14, 2018 for the

8

limited purposes of the object of this Order.

9

Plaintiff is ORDERED to appear in San Diego County and sit for a deposition that

10

must be complete no later than September 14, 2018. Payton’s request for sanctions is

11

DENIED without prejudice. However, Plaintiff is cautioned that failure to appear as

12

ordered herein may result in the issuance of sanctions up to and including a

13

recommendation for termination of his case. Fed. R. Civ. P. 37(d)(3).

14
15

IT IS SO ORDERED.
DATED: August 24, 2018

16
17
18
19
20
21
22
23
24
25
26
27
28

3

Payton properly noticed the deposition well in advance of the scheduled date. Plaintiff
never sought a protective order to move the date or location. Plaintiff definitively notified
Payton that he would not attend only two days before the scheduled deposition.
3
17-CV-362-H(WVG)