Estate of James Strong Jr., The et al v. City of Northglenn, Colorado, The et al

Filing 83

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Michael E. Hegarty on 6/21/2018 re 67 MOTION for Sanctions Pursuant to Fed.R.Civ.P. 37(d) filed by City of Thornton, Colorado, The, Adam Nielsen, City of Westminster, Colorado, The, Nicholas Wilson, Jason Schlenker, City of Northglenn, Colorado, The. The Court discharges its 75 Order to Show Cause. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01276-WJM-MEH
ESTATE OF JAMES STRONG, JR.,
LANHISHA RICHMOND, individually and as natural parent of minors J.S. and T.S.R.,
MARCUS STRONG, and
HOWARD MITCHELL, JR.,
Plaintiffs,
v.
CITY OF NORTHGLENN, COLORADO,
CITY OF THORNTON, COLORADO,
CITY OF WESTMINSTER, COLORADO,
NICHOLAS WILSON,
JASON SCHLENKER, and
ADAM NIELSEN,
Defendants.
_____________________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
On May 17, 2018, pursuant to this Court’s Practice Standard I.C., defense counsel emailed
the Court (and copied to Plaintiffs’ counsel) requesting a discovery conference to discuss Plaintiff
Marcus Strong’s1 failure to appear for his deposition on January 31, 2018. The Court responded by
email seeking counsels’ availability for the following week, but received no response from
Plaintiffs’ counsel; thus, the Court set a telephone conference for May 24, 2018 directing counsel
to teleconference together first before calling the Court. Order, ECF No. 66. Despite notification
by email and order, Plaintiffs’ counsel did not appear for the May 24, 2018 conference. Minutes,

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Because “Strong” is the name of other Plaintiffs in this case, the Court will refer to
Marcus Strong by his first and last name throughout this order.

ECF No. 68. That same day, Defendants filed the present motion for sanctions pursuant to Fed. R.
Civ. P. 37(d) for Marcus Strong’s failure to appear at his deposition. ECF No. 67. Then, on June
4, 2018, this Court issued an order for Plaintiffs to show cause why the motion should not be granted
and fees awarded against the Plaintiffs for their failure to appear at the May 24, 2018 conference.
ECF No. 75.
On June 14, 2018, Plaintiffs filed a response to the order to show cause explaining that
counsel “missed [defense counsel’s] call” just prior to the conference and attempted to call defense
counsel, but was told defense counsel was out of the office until the following week. Resp. ¶¶ 6,
7, ECF No. 80. Plaintiffs asked that the Court discharge the show cause order as counsel “made
every attempt to attend the schedule[d] telephone conference.” Id. ¶ 9. While the Court believes
that Plaintiffs’ counsel could (and should) have called the Court directly when he was unable to
reach defense counsel, the Court will nonetheless discharge2 the order to show cause for Plaintiffs’
failure to appear at the discovery conference.
Notably, Plaintiffs mentioned nothing about the motion for sanctions in their response, nor
filed a separate response brief opposing the motion for sanctions within the time required by D.C.
Colo. LCivR 7.1(d). As such, the Court finds the motion is unopposed.
“Rule 37(d)(1)(A)(i) authorizes a district court to impose sanctions if a party fails to appear
for his deposition after being served with proper notice.” Smith v. McKune, 345 F. App’x 317, 318
n.1 (10th Cir. 2009). “A motion for sanctions for failing to answer or respond must include a
certification that the movant has in good faith conferred or attempted to confer with the party failing

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The Court notes that, at the conference, defense counsel stated his preference to file the
motion for sanctions rather than have this Court issue a recommendation for dismissal of the
Plaintiffs’ claims as a sanction for Plaintiffs’ failure to appear that day.
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to act in an effort to obtain the answer or response without court action.” Fed. R. Civ. P.
37(d)(1)(B). “Sanctions for failure to appear ‘may include any of the orders listed in Rule
37(b)(2)(A)(i)-(vi),’ which includes dismissing the action in whole.” McKune, 345 F. App’x at 318
(citing Fed. R. Civ. P. 37(b)(2)(A)(v), 37(d)(3)).
“Because dismissal of an action with prejudice is a drastic sanction that should be employed
only as a last resort, it is appropriate only in cases of willful misconduct.” Id. (citing Davis v. Miller,
571 F.3d 1058, 1061 (10th Cir. 2009) and Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th
Cir.1992)) (internal quotation marks omitted). Accordingly, before dismissing a case under Rule
37, a district court
should ordinarily consider a number of factors, including: (1) the degree of actual
prejudice to the defendant; (2) the amount of interference with the judicial process;
... (3) the culpability of the litigant; (4) whether the court warned the party in
advance that dismissal of the action would be a likely sanction for noncompliance;
and (5) the efficacy of lesser sanctions.
Id. (citation omitted).
In this case, Defendant produced a copy of the December 17, 2017 Notice of Videotaped
Deposition of Marcus Strong scheduled for January 31, 2018 at defense counsel’s office in Denver,
Colorado. Notice, ECF No. 67-1. According to Defendant, its counsel conferred with Plaintiffs’
counsel following Marcus Strong’s non-appearance through “exchanges of emails” and “telephone
discussions,” then tendered a proposed stipulation for dismissal with prejudice. Mot. 2. Plaintiffs’
counsel objected to dismissal with prejudice and “would only agree to a voluntary dismissal” if it
was “without prejudice.” Id. Defendant seeks as sanctions the dismissal of Marcus Strong’s claims
with prejudice, an award of attorney’s fees incurred in filing the motion and preparing for the
deposition, and an award of costs associated with canceling the deposition.

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The Court notes that, while the Plaintiffs have not filed a response opposing the present
motion, they have since filed a motion for leave to file a Second Amended Complaint, which
identifies Marcus Strong as a “Plaintiff” in the case caption and refers to him as participating in the
events that are the subject of the Plaintiffs’ claims in this case; however, the proposed pleading does
not name Marcus Strong in the “Parties” section of the Second Amended Complaint, nor alleges a
claim on his behalf, nor identifies him as having suffered damages as a result of the Defendants’
alleged conduct. See ECF No. 72-1. Plaintiffs also assert that, in seeking the proposed amendments,
they “have not added counts to the complaint but removed several counts to help improve the quality
of and expediency of the case.” Reply ¶ 9, ECF No. 79. Thus, while Plaintiffs have not specifically
attempted to remove Marcus Strong as a Plaintiff in this case, it is apparent from the proposed
amendments that they seek to abandon his claims. Compare ECF No. 72-1 with ECF No. 33
(alleging Count 8 on behalf of Marcus Strong).
The Court finds that the proper sanction for Marcus Strong’s failure to attend his deposition
and failure to make himself available for a deposition thereafter is to dismiss his claims in this case
with prejudice. Marcus Strong’s refusal to participate in discovery substantially prejudices the
Defendant with respect to any claims he may allege. Furthermore, there is no indication that his
failure to appear at the deposition was the fault of anyone other than himself. Finally, perhaps
knowing that the sanction would be imposed, Plaintiffs appear to have abandoned Marcus Strong’s
claims in this case.
In addition, neither Marcus Strong nor his counsel have provided the Court with any
information that might mitigate their responsibility for the fees and costs incurred as a result of
Marcus Strong’s failure to attend his deposition. Therefore, the Court will award the Defendant

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costs in the amount of $350.00 (see ECF Nos. 67-2 and 67-3) and its reasonable attorney’s fees for
preparing for the deposition and drafting the present motion. Defendant shall file an affidavit in
accordance with D.C. Colo. LCivR 54.3 on or before June 29, 2018, and the Plaintiffs may file a
response challenging the reasonableness of the fees within fourteen days after the affidavit is served.
THEREFORE, this Court respectfully recommends that Defendants’ Motion for Sanctions
Pursuant to Fed. R. Civ. P. 37(d) [filed May 24, 2018; ECF No. 67] is granted and that the District
Court dismiss Marcus Strong’s claims with prejudice.3 In addition, the Court orders an award of
costs and attorney’s fees as set forth herein.
Further, the Court discharges its Order to Show Cause issued June 4, 2018 [ECF No. 75].
Dated this 21st day of June, 2018, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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Be advised that all parties shall have fourteen (14) days after service hereof to serve and
file any written objections in order to obtain reconsideration by the District Judge to whom this
case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District Court need
not consider frivolous, conclusive or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen (14) days after being served with a copy may bar the
aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991)).
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