Roberts v. Lessard et al

Filing 40

ORDER denying 32 Motion to have Allegations in Complaint Deemed Admitted is DENIED. Parties shall bear their own costs. The 37 Motion to Strike Exhibits is DENIED as moot. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 10/26/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

BRIAN ROBERTS

CIVIL ACTION

VERSUS
NO. 17-7-BAJ-RLB
MAJOR SHANNON LESSARD,
ET AL.
ORDER
Before the Court is Plaintiff’s Motion to Have Allegations in Complaint Deemed
Admitted (R. Doc. 32) filed on September 28, 2017. Plaintiff seeks sanctions on the basis that
Major Shannon Lessard and her counsel “failed to appear” for Major Lessard’s deposition. The
motion is opposed. (R. Doc. 34). Plaintiff has filed a Reply. (R. Doc. 39).
Also before the Court is Plaintiff’s Motion to Strike Exhibits (R. Doc. 37) filed on
October 24, 2017. Plaintiff argues that some of the evidence submitted in support of Major
Lessard’s Opposition must be struck from the record on the basis of lack of personal knowledge,
speculation, hearsay, and/or lack of authentication. The deadline for filing an opposition to this
motion has not expired. LR 7(f).
I.

Background
Plaintiff noticed the deposition of Major Lessard to take place on September 27, 2017 at

2:30 p.m. at the Elayn Hunt Correctional Center (“EHCC”) in St. Gabriel, Louisiana. (R. Doc.
32-4). Major Lessard did not move for a protective order with regard to the noticed deposition.
The day before the deposition was noticed to take place, defense counsel confirmed that the
deposition was to take place at EHCC and would commence at 2:30 p.m. (R. Doc. 32-6 at 1).

Plaintiff asserts that at 2:30 p.m., Plaintiff’s counsel, Ms. Donna Grodner, “confirmed
that the attorney from the AG’s Office was not present at EHCC” and, as she was leaving the
facility, again verified that no attorney from the AG’s Office was present at EHCC. (R. Doc. 32
at 1-2). In support of the instant motion, Plaintiff’s counsel, certifies, in pertinent part, the
following:
After 2:30 p.m., a process verbal was conducted on both the depositions of Major
Shannon Lessard and on Lt. [Slater]. As both the undersigned and the Court
Reporter were leaving the parking lot, the gate sergeant stopped us and, upon
information and belief, they learned that someone was now in route from the
AG’s Office, which is located in Baton Rouge. EHCC is located in St. Gabriel,
Louisiana. The undersigned verified that no attorney from the AG’s Office was
present inside EHCC and left.
(R. Doc. 32-2 at 2) (emphasis added). Plaintiff’s counsel further certifies that “Major Shannon
Lessard and her counsel failed to appear for the deposition.” (R. Doc. 32-2 at 2).
In opposition, Major Lessard, Major Kevin Durbin, and Former Lieutenant Lindell Slater
(collectively, “Defendants”) assert that Plaintiff’s motion contains misrepresentations and
“should be denied as frivolous and sanctions against counsel for Plaintiff should be ordered.” (R.
Doc. 34 at 2).
Defendants submit an affidavit of M. Sgt. Tekiley Adams stating that he received a call
from the EHCC Front Gate Security Officer at approximately 2:11 p.m. notifying him that
Plaintiff’s counsel had arrived for the deposition. (R. Doc. 34-1 at 3). M. Sgt. Adams further
asserts that he verified that the deposition was scheduled and contacted the EHCC Front Gate
Security Officer to allow Plaintiff’s counsel to enter EHCC and to proceed on foot to the
Administration Building for the taking of the deposition. (R. Doc. 34-1 at 4). M. Sgt. Adams
asserts that upon receiving the foregoing information at 2:21 p.m., Plaintiff’s counsel informed
the EHCC Front Gate Security Officer that “she was leaving” because Major Lessard’s counsel

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had not yet arrived for the deposition. (R. Doc. 34-1 at 4). M. Sgt. Adams also represents that
“Maj. Lessard was, in fact, present at [the] EHCC Administrative Building and prepared to give
deposition testimony” when Plaintiff’s counsel left the facility. (R. Doc. 34-1 at 5).
The “Contractor/Visitor Drive-In Register” for EHCC marks Plaintiff’s counsel as “in” at
2:11 p.m. and “out” at 2:21 p.m. (R. Doc. 34-1 at 12).
Defense counsel also submitted an affidavit. (R. Doc. 34-2). Defense counsel asserts,
among other things, that she “arrived at the EHCC Front Gate at approximately 2:28 p.m. and
was informed by the EHCC Front Gate Security Officer and M. Sgt. Williams that Plaintiff’s
counsel had left the facility. (R. Doc. 34-2 at 3). Defense counsel further asserts that M. Sgt.
Williams asked “Didn’t you see the blue car that just passed you?” in reference to Plaintiff’s
counsel’s car and, at that moment, she saw the blue vehicle in her rear view mirror leaving the
facility. (R. Doc. 34-2 at 4).
The “Contractor/Visitor Drive-In Register” for EHCC marks Plaintiff’s counsel as “in” at
2:29 p.m. and “out” at 2:30 p.m. (R. Doc. 34-1 at 12).
In reply, Plaintiff argues, among other things, that the deposition was not scheduled to be
held at the front gate of EHCC; there is no indication in the record that Major Lessard was
present at the Administrative Building or otherwise available to have her deposition taken at 2:30
p.m. at EHCC; the gate was not opened to provide Plaintiff’s counsel access to the prison;
defense counsel was not inside EHCC at 2:30 p.m.; and there was no indication at 2:30 p.m. that
a deposition would take place. (R. Doc. 39 at 2-5). The remainder of Plaintiff’s Reply raises the
same arguments in Plaintiff’s Motion to Strike regarding the admissibility of the affidavits and
other evidence submitted in support of Major Lessard’s Opposition. (R. Doc. 39 at 5-15; see R.
Doc. 37).

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II.

Law and Analysis
Rule 37(d) provides, in pertinent part, that “[t]he court where the action is pending may,

on motion, order sanctions if . . . a party . . . fails, after being served with proper notice, to appear
for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Sanctions for failure to appear at a
deposition “may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in
addition to these sanctions, the court must require the party failing to act, the attorney advising
that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(d)(3).
Here, in addition to awardable expenses, Plaintiff seeks sanctions pursuant to Rule
37(b)(2)(a)(i) (“directing that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing party claims”) and (vi)
(“rendering a default judgment against the disobedient party”). (R. Doc. 32-3 at 1-2).
Conversely, Defendants seek an award of sanctions on the basis that the instant motion is
frivolous. (R. Doc. 34 at 1).
Given the record, the Court cannot determine with any precision when Plaintiff’s counsel
actually left EHCC and when defense counsel arrived at EHCC. Plaintiff’s counsel asserts that
she left the facility “after” 2:30 p.m. The gate log and M. Sgt. Adams’s affidavit, however,
indicate that Plaintiff’s counsel left the facility at 2:21 p.m. Regardless of the precise timing, it is
clear that Plaintiff’s counsel left EHCC within mere minutes of the scheduled time, knowing that
opposing counsel was on the way.
The Court is also aware that, given the logistics required after signing in to the facility,
including parking and walking to the Administrative Building, defense counsel was not prepared

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to participate in a deposition set to commence at 2:30 p.m. That said, even if Plaintiff’s counsel
left the facility at or soon after 2:30 p.m. (which is disputed), however, Ms. Donna Grodner did
not extend the expected courtesies expected of practitioners in this district. Indeed, Plaintiff’s
counsel was informed that defense counsel was on the way and in fact arrived within minutes, if
not sooner, than the scheduled time.
At least one court has assumed for the purposes of addressing a motion brought pursuant
to Rule 37(d) that 30 minutes’ tardiness constitutes failure to attend a deposition. See Coon v.
Froehlich, 573 F. Supp. 918, 923 (S.D. Ohio 1983) (finding no sanctions appropriate even
assuming that the delay constituted failure to attend). The facts of this case are significantly
distinguishable in that counsel arrived within minutes of the scheduled time and Plaintiff’s
counsel was aware that defense counsel was on the way. Even assuming that any late arrival of a
party’s counsel constitutes a failure by the party to appear at a deposition under Rule 37(d), it
would be unjust under the circumstances of this case to award any sanctions pursuant to Rule
37(b)(2)(A) or to award any expenses pursuant to Rule 37(d)(1)(A)(i). See Coon, 573 F. Supp. at
923-24.
Given the record, the Court finds no basis for awarding the relief sought by Plaintiff. The
deadline to complete non-expert discovery in this action is March 1, 2018. (R. Doc. 25).
Accordingly, Plaintiff has sufficient time to re-notice the deposition of Major Lessard. If
Plaintiff re-noticed her deposition, Major Lessard and her counsel must be present at the
designated deposition time and be prepared to commence the deposition at the time noticed.

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III.

Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion to Have Allegations in Complaint Deemed

Admitted (R. Doc. 32) is DENIED. The parties shall bear their own costs.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Exhibits (R. Doc. 37) is
DENIED as moot.
Signed in Baton Rouge, Louisiana, on October 26, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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