Avila et al v. Century National Insurance Company

Filing 97

ORDER Denying 91 Motion for Sanctions. Signed by Magistrate Judge George Foley, Jr on 12/18/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FERNANDO AVILA and ROSARIO REYES as
Co-Administrators of the Estate of Manuel Avila,

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Plaintiffs,
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vs.
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CENTURY NATIONAL INSURANCE
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COMPANY,
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Defendant.
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__________________________________________)

Case No. 2:09-cv-00682-RCJ-GWF
ORDER
Motion for Sanctions (#91)

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This matter comes before the Court on Defendant Century National Insurance Company’s

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(“Defendant”) Motion for Sanctions (#91), filed on November 13, 2012. Plaintiffs filed a timely

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Response (#95) on November 30, 2012. Defendant filed a timely Reply (#96) on December 10,

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2012.

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In the underlying case, Plaintiffs seek an award for emotional damages on behalf of the

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Estate of Manuel Avila (“Decedent”), whom Defendant refused to defend in an insurance claim.

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Defendant served Plaintiffs with a Notice of Taking Deposition of Person Most Knowledgeable of

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the Estate of Manuel Avila regarding the basis for Decedent’s claims of emotional damages.

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Plaintiffs designated, and Defendant deposed, Fernando Avila (“Avila”) as the person most

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knowledgeable of Decedent’s estate. Defendant thereafter filed a Motion for Summary Judgment

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(#62), arguing Avila’s deposition testimony failed to establish emotional distress damages. The

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District Court granted Defendant’s summary judgment motion (#71). On appeal, the United States

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Court of Appeal for the Ninth Circuit found that “there was a genuine dispute of material fact over

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emotional damages, because [Avila’s] testimony was sufficient for a jury to reach the conclusion

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that [Decedent] was harmed by [Defendant’s] conduct.” See Doc. # 80 at 4. The Ninth Circuit

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remanded, noting that “allowing further discovery is now within the discretion of the district court.”

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Id. at 5, n.2.

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Defendant now seeks sanctions under Federal Rule of Civil Procedure 37(d)(1)(A)(i), which

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provides that a court may order sanctions if “a person designated under rule 30(b)(6) [...] fails, after

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being served with the proper notice, to appear for that person’s deposition.” Defendant argues (1)

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that the emotional distress damages in this case should be judicially established as non-existent, or,

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alternatively, (2) that the deposition transcript of Avila should be the only evidence allowed at trial

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on the issue of emotional distress damages. As a basis for sanctions, Defendant claims that

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Plaintiffs failed to provide a knowledgeable witness in Avila for Defendant’s Rule 30(b)(6)

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deposition. The Ninth Circuit found, however, that Avila’s deposition testimony was sufficient for

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a jury to conclude that Decedent suffered emotional damages. The Court therefore finds that

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sanctions under Rule 37 are not warranted. Under the Court’s November 21, 2012 Scheduling

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Order (#94), both parties are free to conduct additional discovery regarding Plaintiffs’ emotional

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damages claim until the discovery cutoff on March 13, 2013. Accordingly,

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IT IS HEREBY ORDERED that Defendant’s Motion for Sanctions Pursuant to FRCP 37
(#91) is denied.
DATED this 18th day of December, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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