Bailey v. Feltmann
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that defendant's Motion for Modification of the Case Management Order or, in the Alternative, for Sanctions for Plaintiff's Failure to Attend His Own Deposition is GRANTED to the extent the Cas e Management Order will be modified, and DENIED as to the alternative motion for sanctions. [Doc. 15 ]... IT IS FURTHER ORDERED that plaintiff's Motion for Protective Order is GRANTED to the extent that plaintiff's deposition shall be sc heduled on any weekday at 4:45 p.m., or at 3:00 p.m. upon two weeks' prior notice, and DENIED in all other respects. [Doc. 20 ] (SEE ORDER FOR FURTHER DETAILS.) ( Discovery Completion due by 8/29/2014., Jury Trial set for 1/12/2015 before District Judge Charles A. Shaw., Dispositive Motions due by 9/22/2014., Pretrial Conference set for 1/8/2015 before District Judge Charles A. Shaw.) Signed by District Judge Charles A. Shaw on 7/25/2014. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:14-CV-47 CAS
MEMORANDUM AND ORDER
This matter is before the Court on defendant Don Feltmann’s Motion for Modification of the
Case Management Order or, in the Alternative, for Sanctions for Plaintiff’s Failure to Attend His
Own Deposition, and on plaintiff’s Motion for Protective Order.1
Defendant’s motion states that plaintiff failed to attend his deposition noticed for July 2,
2014 at 3:00 p.m., and did not notify defendant’s counsel of his nonappearance until 1:00 p.m. on
the same date. Discovery in this case closed on July 3, 2014. See Doc. 13. Defendant asks the
Court to extend the discovery and dispositive motion deadlines to permit him to take plaintiff’s
deposition. In the alternative, defendant asks the Court to dismiss this action with prejudice based
on plaintiff’s failure to appear at his deposition. Defendant also asks for his costs and attorney’s fees
pursuant to Rule 37(d)(3), Federal Rules of Civil Procedure.
Although the Court normally issues rulings on discovery motions only at its monthly
discovery motion docket, it makes an exception in this case for purposes of judicial efficiency, given
the need to complete discovery in a timely manner considering the impending trial date.
After careful consideration, the Court will grant defendant’s motion to modify the Case
Management Order, but will extend the discovery deadline to August 29, 2014 and the dispositive
motion deadline to September 19, 2014, and continue the trial date to January 12, 2015.
The Court will deny defendant’s alternative motion to dismiss the case with prejudice, as it
finds plaintiff’s failure to appear for his deposition was not deliberate or in bad faith. Plaintiff’s
counsel avers that plaintiff would have lost his job if he had attended the deposition, and that in
scheduling the 3:00 p.m. deposition, plaintiff’s counsel had mistakenly believed plaintiff could leave
work early. Further, plaintiff tried to notify his counsel on the evening of July 1, 2014 that he could
not attend the deposition on July 2, 2014, but because of communication difficulties, plaintiff and
his counsel were unable to speak until approximately noon on July 2, 2014, the day of the scheduled
deposition. In addition, defendant’s deposition was scheduled for 1:00 p.m. on July 2, 2014 at the
same location as plaintiff’s scheduled deposition, and that deposition went forward. Dismissal with
prejudice is far too extreme a sanction for plaintiff’s nonappearance to be appropriate in this
circumstance. See Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir. 2014) (discussing standards
for dismissal as a discovery sanction).
Defendant’s request for attorney’s fees will also be denied. Pursuant to Rule 37(d), the
moving party may recover from a party who fails to attend a properly noticed deposition “the
reasonable expenses, including attorney’s fees, caused by the failure.” Fed. R. Civ. P. 37(d)(3)
(emphasis added). Here, defendant has requested more than the expenses he incurred as a result of
plaintiff’s failure to attend his deposition, which appear to be limited to a $50.00 court reporter fee
for the record of non-appearance that defendant’s counsel chose to order.2 Defendant’s request for
fees includes time spent “researching, evaluating, discussing, responding to and otherwise
attempting to remediate Plaintiff’s failure to attend his own deposition, including but not limited to
the preparation of” the instant motion, plaintiff’s response thereto, and researching and drafting his
reply memorandum. These costs were incurred because defendant elected to take a particularly
aggressive response to plaintiff’s failure to appear, which the Court finds was not warranted under
the circumstances. Further, because defendant’s deposition was taken on the same day, defendant’s
counsel was not put to additional expense merely because plaintiff did not appear. See Ranger
Transportation, Inc. v. Wal–Mart Stores, 903 F.2d 1185, 1188 (8th Cir. 1990) (declining to award
expenses incurred preparing for an aborted deposition, holding that movant incurred no recoverable
expenses upon nonmoving party’s failure to attend deposition, where movant was able to take other
depositions the same day).
Plaintiff’s motion for a protective order asks that defendant be prohibited from propounding
the same or similar questions to plaintiff during his deposition on the same topics that were covered
in plaintiff’s deposition taken on October 30, 2013 in a separate case, Bailey v. Davis, No. 4:12-CV2016 JCH (E.D. Mo.), that was voluntarily dismissed without prejudice in December 2013.
The Court will not order reimbursement for the court reporter fee, where the record of nonappearance reflects that defense counsel stated counsel had agreed to ask the Court for a continuance
of the discovery and dispositive motion deadlines, Record of Non Appearance at 4 (Def.’s Ex. A),
and reserved the right to seek other relief only in the event the deadlines were not extended and Mr.
Bailey’s deposition could not be taken. In addition, the court reporter was already present for the
defendant’s deposition at 1:00 p.m. Under these circumstances, an award of expenses would be
This aspect of plaintiff’s motion will be denied. This is a separate case in which plaintiff
asserts different claims than he asserted in the first Bailey case. Defendant Feltmann was not a party
to the other action. Defendant Feltmann has the right to examine plaintiff concerning the facts and
claims asserted in this action. The fact that the same law firm represented the defendants in the first
Bailey case offers no support for plaintiff’s motion.
Plaintiff also asks that the Court order his deposition to take place either at 4:45 p.m. on any
weekday, or at 3:00 p.m. upon two weeks’ prior notice, to accommodate his work schedule.
Although defendant objects, the Court finds this limitation is reasonable and warranted.
IT IS HEREBY ORDERED that defendant’s Motion for Modification of the Case
Management Order or, in the Alternative, for Sanctions for Plaintiff’s Failure to Attend His Own
Deposition is GRANTED to the extent the Case Management Order will be modified, and DENIED
as to the alternative motion for sanctions. [Doc. 15]
IT IS FURTHER ORDERED that the Case Management Order is modified to the extent
that the parties shall complete all discovery in the case by August 29, 2014, any dispositive motions
shall be filed by September 22, 2014, and the trial is set on the three-week docket beginning
January 12, 2015. The final pretrial conference will be held January 8, 2015. The Case
Management Order of February 4, 2014, as amended by the Order of June 20, 2014, otherwise
remains in full force and effect except as modified herein.
IT IS FURTHER ORDERED that plaintiff’s Motion for Protective Order is GRANTED
to the extent that plaintiff’s deposition shall be scheduled on any weekday at 4:45 p.m., or at 3:00
p.m. upon two weeks’ prior notice, and DENIED in all other respects. [Doc. 20]
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 25th day of July, 2014.
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