BEAN v. BARNHART et al

Filing 51

ORDER denying 45 Motion for Sanctions. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

BENJAMIN BEAN,
Plaintiff,
v.
PATRICIA BARNHART, et al.,
Defendants

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1:13-cv-00196-NT

ORDER ON DEFENDANTS’ MOTION
FOR SANCTIONS (ECF NO. 45)
This matter is before the Court on Defendants’ Motion for Sanctions (ECF No. 45).
Through their motion, citing Plaintiff’s failure to appear for his scheduled deposition on three
occasions, Defendants request dismissal of Plaintiff’s complaint as a sanction. After review of the
parties’ written arguments, as explained below, I conclude that the imposition of sanctions is
appropriate, but that dismissal is not warranted.1
Factual Background
Prior to June 26, 2014, Plaintiff failed on two occasions to appear for his scheduled
deposition. As a result, Defendants requested the dismissal of Plaintiff’s complaint. Following a
telephonic hearing on June 26, Defendants’ request for dismissal was denied. (ECF No. 44.)
Plaintiff, however, was ordered to appear for his deposition on August 7, 2014, at the Attorney
General’s office in Portland. (Id.) After Plaintiff failed to appear for the deposition, Defendants
filed the pending motion.

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Had I determined that dismissal was appropriate, the decision would have been in the form of a recommended
decision.

Discussion
Federal Rule of Civil Procedure 37 authorizes the Court to impose sanctions, including
dismissal, in the event a party fails to comply with a court order, or fails to respond appropriately
to legitimate discovery requests. Fed. R. Civ. P. 37(b)(2), (d). Dismissal, while authorized, is the
ultimate sanction. When considering whether a discovery violation warrants dismissal, the Court
should consider a variety of factors, including “the severity of the violation, the legitimacy of the
party’s excuse, repetition of violations, the deliberateness vel non of the misconduct, mitigating
excuses, prejudice to the other side and to the operations of the court, and the adequacy of lesser
sanctions.” Malloy v. WM Specialty Mortg. LLC, 512 F.3d 23, 26 (1st Cir. 2008) (quoting Robson
v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996)).
Given Plaintiff’s failure to attend the scheduled deposition on three occasions, Defendants’
request for dismissal is understandable. The fact that Plaintiff was at all relevant times a transient,
and without a reliable means of communication with his attorney, however, persuades the Court
that under the circumstances, dismissal is not appropriate. In other words, because the Court is
not convinced that Plaintiff’s failure to attend the depositions was due to Plaintiff’s deliberate
effort to ignore the Court’s order and the applicable rules, the Court determines that Plaintiff has
demonstrated sufficient cause to avoid dismissal.2
To assure that Plaintiff appreciates the significance of his failure to attend the depositions,
and to assure that he understands that he must attend the deposition when next scheduled, the Court

In the June 26, 2014, Order addressing Plaintiff’s previous failure to attend his deposition, I wrote, “[i]n the event
that Plaintiff, without good cause, fails to attend the deposition as ordered, this Court will recommend the dismissal
of Plaintiff’s complaint.” (ECF No. 44) The communication issues caused by Plaintiff’s transiency constitute good
cause. To prevent the communication issues from generating the same challenge if Defendants reschedule Plaintiff’s
deposition, this Order will impose a specific condition on the rescheduling, which condition will confirm Plaintiff’s
personal knowledge of the date, time and location of the deposition.
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believes financial sanctions are warranted, and that certain conditions regarding the scheduling of
the deposition are necessary. The Court, therefore, orders:
1.

Plaintiff shall reimburse Defendants for the costs, if any, associated with the
appearance of the court reporter(s) for the depositions that Plaintiff failed to attend, and
for the cost of the court reporter’s attendance at Plaintiff’s deposition should
Defendants reschedule the deposition.

2. Plaintiff shall reimburse Defendants for the travel costs incurred by Defendants’
counsel to attend the depositions that Plaintiff failed to attend, and to attend Plaintiff’s
deposition should Defendants reschedule the deposition.
3. Plaintiff shall reimburse Defendants for the cost of the transcript of Plaintiff’s
deposition testimony should Defendants reschedule the deposition.
4. Defendants may reschedule the deposition at a time and location convenient for
Defendants and Defendants’ counsel. The notice of the deposition shall include a line
for the date, Plaintiff’s signature, and the following language: “I, Benjamin Bean, have
personally received a copy of this notice of deposition; I understand that I must attend
the deposition as scheduled; and I acknowledge that my failure to attend the deposition
could result in the dismissal of my case.” Within ten (10) days of the service of the
notice of deposition upon Plaintiff’s counsel, Plaintiff shall provide Defendants’
counsel with the notice of deposition signed by Plaintiff.
NOTICE
Any objections to this Order shall be filed in accordance with Fed. R. Civ. P. 72.
Dated this 10th day of October, 2014.
/s/ John C. Nivison
U.S. Magistrate Judge
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