Hines et al v. Cooper Tire & Rubber Company

Filing 92

RULING granting in part and denying in part 66 Motion to Compel Depositions. Signed by Magistrate Judge Stephen C. Riedlinger on 9/30/2013. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

CLEMMIE HINES, ET AL.
CIVIL ACTION
VERSUS
NUMBER 11-254-JJB-SCR
COOPER TIRE & RUBBER COMPANY
RULING ON MOTION TO COMPEL DEPOSITIONS
Before the court is Defendant Cooper Tire’s Motion to Compel
Depositions

of

Plaintiffs

Laviticus Floyd.

Edward

Barnes,

Nakitia

Record document number 66.

Dorsey,

and

The motion is

opposed.1
Defendant filed this motion to compel the three above-named
plaintiffs to appear for their depositions.

After the motion was

filed, plaintiff Nakitia Dorsey appeared for her deposition on
January 29, 2013.2

Thus, this ruling will address the failure of

plaintiffs Barnes and Floyd to appear for their depositions.
Defendant summarized its numerous efforts to amicably schedule
these depositions since February 2012.

Plaintiffs asserted that

Floyd was notified of his deposition date but he did not appear.
Plaintiffs’ counsel explained that Floyd was informed that his

1

Record document number 78.
Defendant
memorandum. Record document number 79
2

filed

a

reply

Defendant also requested certain discovery responses be
produced by Dorsey seven days prior to her deposition.
This
request was not addressed in the defendant’s reply brief which was
filed after her deposition had been taken. Thus, the Court will
assume that this issue is now moot.

claim could be dismissed if he did not attend, and that Floyd
failed respond to any contact from counsel since that time.
Plaintiffs also asserted that all attempts to contact Barnes were
unsuccessful and that he is likely unaware that his claim could be
dismissed if he does not attend his deposition.

Plaintiffs

requested additional time to contact these two plaintiffs and
provide them with proper notice of the consequences of their
failure to appear for their depositions.
Clearly, the plaintiffs’ counsel’s inability to communicate
with his clients is not his fault.

Counsel made reasonable

attempts to obtain a response from both plaintiffs. Plaintiffs are
Floyd and Barnes, just like the other plaintiffs, are ultimately
responsible for providing current and accurate contact information
and

timely

responding

communications

from

to

their

their
counsel.

correspondence
These

and

other

plaintiffs

cannot

circumvent their obligations by refusing or avoiding contact with
counsel.
Because the plaintiffs failed to provide any reasonable excuse
for their failure to appear, the defendant is entitled to an order
compelling

plaintiffs

depositions.

Floyd

and

Barnes

to

appear

for

their

Plaintiffs Floyd and Barnes will be required to

appear for their depositions on a reasonable date designated by the
defendant, within 45 days of this ruling.

2

No objections will be

allowed.3
Under Rule 37(d)(3), Fed.R.Civ.P., the court may sanction a
party who failed to attend its own deposition, or the attorney
advising that party, or both, any of the orders listed in Rule
37(b)(2)(A)(i-vii).

Failure to comply with this ruling may result

in additional sanctions under Rule 37(b)(2)(A)(i-vii), including,
but not limited to, dismissal of some or all of their claims.
Pursuant to Rule 37(d)(3), the court also must order payment
the movant’s reasonable expenses, including attorney’s fees, caused
by the failure, unless the party’s failure was substantially
justified or other circumstances make an award of expenses unjust.
Defendant’s motion shows that a good faith attempt was made to take
the plaintiffs’ depositions without court action.

Plaintiffs

failed to offer any reasonable explanation for their failure to
appear at their depositions.
the

plaintiffs’

circumstances

failure

that

would

Nothing in the record indicates that

was

substantially

make

an

award

of

justified
expenses

or

any

unjust.

Therefore, the defendant is entitled to reasonable expenses under
Rule 37(d)(3).
Defendant did not claim a specific amount for the time
expended in filing this motion and in its attempt to scheduling the

3

Generally, discovery objections are waived if a party fails
to timely object to interrogatories, production requests or other
discovery efforts.
See, In re U.S., 864 F.2d 1153, 1156 (5th
Cir.), reh’g denied, 869 F.2d 1487 (5th Cir. 1989); Godsey v. U.S.,
133 F.R.D. 111, 113 (S.D. Miss. 1990.)
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depositions.

However, a review of the motion and memorandum

supports the conclusion that an award of $1,000.00 is reasonable.
The

award

is

itemized

as

follows:

$600.00

in

costs

for

the

defendant’s multiple efforts to depose these three plaintiffs, plus
$400.00 for the costs incurred in filing this motion.
Accordingly,
Depositions

of

Defendant

Plaintiffs

Cooper

Edward

Tire’s

Barnes,

Motion
Nakitia

to

Compel

Dorsey,

and

Laviticus Floyd is granted in part, and denied in part as moot.
Plaintiffs Edward Barnes and Laviticus Floyd shall appear for their
depositions without objections, within 45 days.

Pursuant to Rule

37(d)(3),

to

these

plaintiffs

are

also

ordered

pay

to

the

defendant, within 14 days, its reasonable expenses in the amount of
$1,000.00.

The remainder of the defendant’s motion is denied as

moot.
Baton Rouge, Louisiana, September 30, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

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