Deloach et al v. Hartford Accident and Indemnity Insurance Company et al

Filing 17

RULING granting 14 Motion for Sanctions. Defendant Alvaro Castillo shall not be permitted to supply any evidence at any trial or hearing, or on any motion. Signed by Magistrate Judge Stephen C. Riedlinger on 01/10/2014. (NLT) Modified on 1/10/2014 to edit the text (NLT).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LARRY DELOACH, ET AL
CIVIL ACTION
VERSUS
NUMBER 13-33-BAJ-SCR
HARTFORD ACCIDENT AND
INDEMNITY INSURANCE COMPANY,
ET AL
RULING ON MOTION FOR SANCTIONS
Before
Plaintiffs.

the

court

is

the

Motion

for

Sanctions

Filed

by

Record document number 14. The motion is opposed.1

Defendant Heavenly Trucking Corporation removed the case to
this court on January 14, 2013, and although defendant Alvaro
Castillo had not yet been served he consented to the removal.2
Defendant Castillo waived service and then filed an answer on April
3, 2013.3

At that time and since then defendant Castillo has been

represented by the same attorney of record.
Plaintiffs sought to depose Castillo, and to that end, over
the course of more than five months, attempted to schedule his
deposition.

With the fact discovery completion deadline nearing,

the plaintiffs noticed the defendant’s deposition for October 17,
2013.

But because the defendant’s attorney could not find his

1

Record document number 16.

2

Record document number 1, Petition for Removal, ¶ 13.

3

Record document numbers 6 and 7, respectively.

client, the defendant’s attorney notified the plaintiffs’ attorney
that the defendant would not appear for his deposition. Plaintiffs
again noticed the defendant’s deposition, this time for December 2,
2013, but this time the plaintiffs also sent a notice of the
deposition to the defendant by certified mail.
received November 18, 2013.4

The mail was

Defendant again failed to appear.

Plaintiffs have done more than what Rule 30, Fed.R.Civ.P.,
required of them to obtain the defendant’s deposition. Defendant’s
failure to appear - twice - without even an explanation, much less
an acceptable excuse, warrants the imposition of sanctions under
Rule 37(d), Fed.R.Civ.P. That the defendant’s attorney cannot find
his client is no reason to excuse the defendant’s failure to
appear.

It is clearly the defendant’s responsibility to keep in

touch with his attorney regarding proceedings in this case and to
cooperate in discovery.
Defendant argued that if a sanction is imposed, it should be
some sanction less than the severe sanction of prohibiting the
defendant from testifying. Defendant argued that there are lesser
sanctions that are more appropriate, but the defendant did not
suggest any particular lesser sanction which he contends would be

4

The certified mail receipt was not signed by the defendant.
Record document number 14-4, p. 4. The relationship of the person
signing the receipt, Claudia Hernandez, to the defendant is not
explained. However, according to the plaintiffs, the address to
which the mail was sent is the address for the defendant provided
by his current employer. Record document number 14-1, supporting
memorandum, p. 3, n. 5.
2

appropriate.
Plaintiffs argued that the defendants alleged that plaintiff
Larry Deloach created an emergency situation, thereby making him
solely

or

partially

at

fault

in

causing

of

the

accident.5

Therefore, plaintiffs argued, defendant Castillo’s testimony would
be relevant to this defense.
A

lesser

sanction

than

prohibiting

testifying would not be effective.

the

defendant

The court considered

from

striking

defendant Castillo’s comparative fault defense as a sanction.6
While such a sanction would be an effective sanction to him, it
would leave open the possibility that defendant Castillo could

5

See record document number 7, Answer to Petition for Damages
filed by defendant Alvaro Castillo, ¶ 20; record document number 8,
Answer to Petition for Damages filed by defendants Heavenly
Trucking Corporation and Hartford Accident and Indemnity Company,
¶ 20. See also record document number 15-1, defendants’ List of
Contested Facts, no. 2 (contesting that plaintiff Deloach safely
changes lanes and then stopped safely).
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The court has also considered other sanctions, including
lesser ones such as a fine or staying the case until he is deposed,
as well as the more serious one of entering a default judgment
against defendant Castillo. A fine would likely not be paid by the
defendant and staying the case would be unfair to the plaintiffs
since a stay would likely require the trial to be continued.
Ordering the defendant to appear for a deposition would likely not
be effective since there is no reason to believe he could be
notified, and if notified that he would comply with the order.
Entry of a default judgment would be effective as to defendant
Castillo.
But his failure to appear for his deposition twice,
while a very serious matter, is not so egregious as to warrant
entry of a default judgment. Moreover, the plaintiffs have already
moved for summary judgment on the issue of liability.
Record
document number 14, Motion for Partial Summary Judgment on the
Issue of Liability Filed by Plaintiffs.
3

appear

at

comparative

the

trial

fault

to

defense

offer

testimony

asserted

by

in

the

support

other

of

the

defendants.

Permitting defendant Castillo to testify in support of the other
defendants’ comparative fault defense would be grossly unfair and
seriously prejudicial to the plaintiffs.
if

the

plaintiffs

would

obtain

a

This is so because even

judgment

against

defendant

Castillo in the absence of a comparative fault defense as to him,
they might not be able to obtain a judgment, or obtain only a
reduced judgment, against the other defendants who would still have
their comparative fault defense - supported by defendant Castillo’s
trial testimony.
There is no suggestion that either of the other defendants had
anything to do with defendant Castillo’s failure to appear for his
deposition.

But if some party is to be disadvantaged as a

consequence of defendant Castillo’s failure to appear for his
deposition, in the circumstances of this case the disadvantaged
party should be defendants Heavenly Trucking Corporation, which was
defendant Castillo’s employer, and Hartford Accident and Indemnity
Company, which is his insurer.
Pursuant to

Rule 37(d)(3), the plaintiffs also sought an

award of expenses incurred in connection with defendant Castillo’s
second noticed deposition and this motion.
appropriate

Such an award is

since defendant Castillo’s failure to appear for his

deposition was not substantially justified and no circumstances

4

make an award of expenses unjust.

Plaintiffs did not submit

anything to support a particular amount of expense. Therefore, the
plaintiffs will be given an opportunity to do so.

The award will

be entered against defendant Castillo personally, as there is no
reason to impose it against the other defendants or their attorney.
Accordingly, the Motion for Sanctions Filed by Plaintiffs is
granted.

Defendant Alvaro Castillo shall not be permitted to

supply any evidence at any trial or hearing, or on any motion.
Plaintiffs are awarded their reasonable expenses incurred in
connection with the defendant’s attempted second deposition and
this motion, the amount to paid by defendant Castillo.
shall

have

until

January

21,

2014

to

file

an

Plaintiffs

affidavit

and

documents sufficient to establish the amount of their expenses, and
the defendant shall have seven days after the plaintiffs’ filing to
file a response. Thereafter, a supplemental ruling as to the award
of expenses will be issued.
Baton Rouge, Louisiana, January 10, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

5