Poulson v. Attorney General of the State of Montana et al

Filing 55

ORDER denying 53 Motion to Subpoena Witnesses; denying 54 Motion Objecting to an Oral Deposition without Court Appointed Counsel. Signed by Magistrate Judge Jeremiah C. Lynch on 3/22/2016. Mailed to Poulson. (TAG, )

FILED
MAR 22 2016
Clerk, U.S District Court

District Of Montana
Missoula

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV-14-000185-M-DLC-JCL

KERMIT POULSON,
Plaintiff,
vs.

ORDER

SGT. RICHTER,
Defendants.
Pending before the Court are Plaintiff Kermit Poulson's Motion to
Subpoena Witnesses (Doc. 53) and Motion Objecting to an Oral Deposition
without Court Appointed Counsel (Doc. 54). Both motions will be denied.
The Court again notes that Poulson's motions do not comply with Local
Rule 7 .1 in that the text of the motions do not state whether the other parties have
been contacted or whether any party objects to the motions. L.R. 7 .1 ( c)( 1). As
such, the motions are subject to summary denial.

I. Motion for Subpoenas
This is Poulson's second Motion to Subpoena Witnesses in less than a
week. For the reasons set forth in the Court's Order of March 17, 2016 (Doc. 52)
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the motion will be denied.
II. Motion Objecting to Deposition

Poulson objects to Defendants taking his deposition because he has not been
appointed counsel. As set forth in the Court's Order of March 17, 2016 (Doc. 52),
the Court's Order of March 16, 2016 (Doc. 47) and the Court's Order of February
26, 2016 (Doc. 42), the Court has considered Poulson's requests for the
appointment and has denied those requests. Poulson will not be appointed counsel
in this matter.
As such, Poulson will be required to appear at his deposition on March 24,
2016. Poulson is advised that should he fail to attend and participate in his
deposition he will be subject to sanctions as set forth in the Federal Rules of Civil
Procedure. Specifically Rule 37(b)(2)(A) of the Federal Rules of Civil Procedure
provides that if a party fails to obey an order to provide or permit discovery, the
court may issue further just orders including dismissal. Fed.R.Civ.P.
37(b)(2)(A)(v). The Court granted Defendant leave to take Poulson's deposition.
(June 23, 2015 Scheduling Order, Doc. 21 at 3, ,-i 5.) Poulson must comply with
that Order.
Secondly, Rule 37(d)(l) of the Federal Rules of Civil Procedure provides
that the Court may, on motion, order sanctions if a party fails, after being served
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with proper notice, to appear for their deposition. Fed. R. Civ. P 37(d)(l)(A)(I);

Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (stating that sanctions
including dismissal, may issue for a complete or serious failure to respond to
discovery, such as a failure to appear for a deposition, even absent a court order
compelling discovery). "Sanctions may include any of the orders listed in Rule
37(b)(2) (A)(i)-(vi)." Fed. R. Civ. P. 37(d)(3). The listed sanctions include
"dismissing the action or proceeding in whole or in part." Fed. R. Civ. P.
37(b )(2)(A)(v).
Finally, Rule 41(b) of the Federal Rules of Civil Procedure allows a Court
to dismiss an action for failure to comply with a Court Order.
Should Poulson fail to participate fully in that deposition, the Court will
consider sanctions including but not limited to a recommendation that this matter
be dismissed with prejudice.
Accordingly, the Court issues the following:

ORDER
1. Poulson's Motion to Subpoena Witnesses (Doc. 53) is denied.
2. Poulson's Motion Objecting to an Oral Deposition without Court
Appointed Counsel (Doc. 54) is denied. Poulson is ordered to attend, cooperate
with opposing counsel and fully participate in his deposition. Should he fail to do
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so the Court will consider sanctions including dismissal of this action.
DATED this 22nd day of March,

-

~c.
ah C. Lynch
d States Magistrate Judge

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