Vien v. Walker et al
Filing
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MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 03/05/2014. (c/m by chambers 3/6/2014)(ads, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TRUNG VIEN
Plaintiff
v.
MARVIN WALKER, et al.
Defendants
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Civil No. PJM 12-1796
MEMORANDUM OPINION
Trung Vien, through counsel, sued five Montgomery County Police Officers, alleging
violations of his civil rights under 42 U.S.C. § 1983. Several months after discovery began,
Vien’s counsel withdrew from the case, and Vien proceeded pro se. After several failed attempts
to seek discovery from him, Defendants’ Motion for Sanctions or in the Alternative Defendants’
Motion to Compel (Paper No. 25) followed. Magistrate Judge Charles B. Day granted the
Motion to Compel, and held a discovery hearing. Vien did not respond to the Motion or appear
at the hearing. The Court now considers Defendants’ Motion for Sanctions. For the reasons that
follow, the Court will GRANT WITH PREJUDICE Defendants’ Motion for Sanctions (Paper
No. 25), with deposition costs to be awarded to Defendants.
I.
When Vien initiated this suit in June 2012, he was represented by counsel. A scheduling
order issued on September 25, 2012, setting a discovery deadline of February 7, 2013. On
March 6, 2013, after two joint requests for extensions of the deadlines in this case had been
granted, counsel for Vien filed a Motion to Withdraw, stating that there was not a “reasonable
likelihood of compensation in this case.” On April 5, 2013 the Court granted the Motion and
“STRONGLY RECOMMENDED” to Vien that he “arrange for substitute counsel and have
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counsel enter his or her appearance within 30 days.” (Paper No. 19). Vien never arranged for
substitute counsel, and has apparently proceeded pro se. Three subsequent extensions of the
scheduling order were requested and granted.
According to Defendants’ Motion and the exhibits attached thereto, Defendants sent Vien
copies of interrogatories and requests for production of documents on June 28, 2013. Vien
signed the receipt card indicating his acceptance of service. On July 26, 2013, Defendants sent
Vien a copy of the same requested discovery, a reminder that discovery responses were due on
July 31, 2013, and a Notice of Deposition for August 14, 2013. The letter and its attachments
were returned to Defendants as “unclaimed”. Vien did not contact Defendants, nor did he appear
for the deposition.
On September 12, 2013, Defendants sent Vien another letter, extending Vien’s deadline
to provide answers to discovery and proposing a second deposition date of October 4, 2014.
Vien signed the receipt card but did not contact Defendants. A fourth letter enclosing a copy of
the Notice of Deposition for October 4, 2013 was sent via both regular mail and certified mail on
September 26, 2013. The certified letter was refused on two separate occasions, but the regular
mail was never returned to Defendants.
On October 2, 2013, counsel for Defendants called Vien to discuss discovery and his
upcoming deposition. Vien indicated that he was aware of the deposition and the overdue
discovery responses, but stated he would not be attending the deposition or responding to
discovery requests, as he had been “told by [his] attorney not to say anything”, although he also
said he was not represented by counsel. Mot. at 4. Vien alleged that he was being threatened by
Defendants and stated, “You have killed me, O.K. I am dead already.” Vien did not appear for
the October 2, 2013 deposition.
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Defendants moved for the sanction of dismissal or, in the alternative, for an order
compelling Vien to provide complete discovery responses and participate in a deposition prior to
the close of discovery on November 17, 2013. Magistrate Judge Day granted the motion to
compel on November 6, 2013. At a hearing before Judge Day on February 19, 2014 to discuss
Vien’s failure to participate in discovery, Defendants represented to the Court that there had been
no further contact with Vien. Vien did not appear for the hearing despite the fact that the notice
to appear was sent by CM/ECF and regular mail.
Defendants request in their Motion for Sanctions dismissal of Vien’s Complaint in its
entirety with prejudice, as well as an order that Vien pay the costs of the depositions which he
failed to attend.
II.
Federal Rule of Civil Procedure 37(d) authorizes the Court to sanction parties who fail to
comply with the discovery process. It provides that if a party fails to appear at a properly noticed
deposition or to serve answers or objections to interrogatories after proper service, the Court is
authorized to make such orders in regards to the failure, as may be appropriate, including
dismissal of the action. See Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). The Fourth Circuit has
developed a four-part inquiry to determine appropriate sanctions in cases where parties do not
comply with the judicial process and its inherent discovery procedures: (1) whether the
noncomplying party has acted in bad faith; (2) the amount of prejudice the party’s
noncompliance has caused his or her adversary; (3) the need to deter the particular type of
noncompliance; and (4) the effectiveness of less drastic sanctions. See Wilson v. Volkswagen of
Am., Inc., 561 F.2d 494, 503–505 (4th Cir. 1977).
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Bad faith can be fairly inferred in this case. Vien has blatantly ignored Defendants’
discovery requests as well as the Court’s Orders and has provided no excuse or justification
whatsoever.
Defendants cannot defend themselves in this case, including filing a dispositive motion,
without the opportunity for discovery and a deposition of Vien. By failing to attend his own
deposition, Vien has undeniably caused Defendants prejudice.
The third factor concerns the need to deter the type of noncompliance found in this case.
Violating court orders to appear for deposition, failing to provide written discovery responses,
and failing to appear for oral argument without even attempting to offer justification or excuse
go to the heart of the court process and totally inhibit a just resolution of disputes. This type of
behavior needs to be deterred.
The fourth and final consideration is the effectiveness of less dramatic sanctions. Here,
to absolutely no avail, all have been tried. Vien has been given ample opportunity for notice but
for some inexplicable reason has refused all efforts to proceed in this case. Dismissal of his suit
is the only reasonable sanction.
III.
Defendants also request the costs of the depositions which Vien failed to attend. Federal
Rule of Civil Procedure 37 requires the Court to order the party failing to act to pay reasonable
expenses caused by the failure “unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C), 37(d)(3).
Because Vien failed to appear at two duly noticed depositions without explanation, the Court
deems it appropriate for Defendants to recover the costs of the depositions scheduled for August
14, 2013 and October 2, 2013.
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IV.
For the foregoing reasons, the Court GRANTS WITH PREJUDICE Defendants’
Motion for Sanctions (Paper No. 25), with reasonable costs for the depositions in which Plaintiff
did not appear.
A separate Order will ISSUE.
March 5, 2014
/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
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