Honey et al v. Dignity Health et al

Filing 100

ORDER Denying 72 Motion to Dismiss and 74 Joinder. Signed by Magistrate Judge George Foley, Jr on 12/18/2013. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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REGINA C. HONEY, individually and as natural
parent of ADDISON M. HONEY, a minor, and
LUCAS R. HONEY, a minor, et al.,

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Plaintiffs,
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vs.
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DIGNITY HEALTH, a California nonprofit
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corporation, doing business as ST. ROSE
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DOMINICAN HOSPITAL – SIENA CAMPUS,
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et al.,
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Defendants.
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__________________________________________)

Case No. 2:12-cv-00416-LRH-GWF
ORDER

This matter is before the Court on Defendant Dignity Health’s Motion for Dismissal and

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Monetary Sanctions (#72), filed on July 3, 2013. Co-Defendant Payflex Systems, USA, Inc. filed a

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Joinder to the Motion to Dismiss (#74) on July 8, 2013. Plaintiffs filed their Response to Dignity

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Health’s Motion for Dismissal and Monetary Sanctions and Payflex’s Joinder (#77) on July 31,

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2013. Dignity Health filed its Reply (#79) on August 12, 2013.1

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This motion relates to an ongoing dispute between the parties regarding the scheduling of

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the Plaintiffs’ depositions. After the motion was filed, Plaintiffs appeared for their depositions on

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July 10 and 11, 2013. Although a party’s compliance with a discovery request after a motion to

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compel or for sanctions has been filed does not excuse non-compliance with the discovery rules

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Because Defendant entitled its motion as a “Motion for Dismissal,” the motion was treated by the
clerk’s office as a dispositive motion for decision by the District Judge. The motion therefore did not
appear on the undersigned magistrate judge’s CM-ECF motions report which would have directed his
attention to this matter. The motion was not referred to the undersigned until December 10, 2013. Counsel
for the parties are encouraged to file motions brought pursuant to Rule 37 of the Federal Rules of Civil
Procedure as “motions for sanctions.”

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prior to the motion, the Court concludes under the facts of this case that an award of sanctions is

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not warranted.

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Defendant seeks an award of sanctions pursuant to Rule 37(d) of the Federal Rules of Civil

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Procedure which provides that the court may, on motion, order sanctions if a party fails, after being

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served with proper notice, to appear for that party’s deposition. In Koninklike Philips Electronics

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N.V. v. KXD Technology, Inc., 2007 WL 3101248, at *18 (D.Nev. 2007), this court stated:

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The Ninth Circuit has strictly construed the language of Rule 37(d).
See Estrada v. Rowland, 69 F. 3d 405, 406 (9th Cir. 1995) (holding
that a party who physically appeared but refused to answer questions
at deposition was not subject to Rule 37(d) sanctions because the rule
applies only when a deponent literally fails to show up for a
deposition session). In Gee v. City of Chicago Public Schools, 2002
WL 1559704 (N.D.Ill.2002), a pro se plaintiff refused to appear for a
deposition. Although Defendant agreed to postpone the deposition to
give plaintiff more time to determine its propriety, plaintiff stated
that she would not appear at any time. Notwithstanding the plaintiff's
expressed intent not to appear for a deposition at any time, the court
held that plaintiff was not subject to Rule 37(d) sanctions for failing
to appear at a deposition that did not actually go forward. The court,
instead, ordered plaintiff to appear for deposition and cautioned her
that she would be subject to sanctions, including dismissal of her
action, if she failed to appear. In In re Air Crash at Taipei Taiwan,
2002 WL 32155477 (C.D.Cal.2002), the plaintiff moved for Rule
37(d) sanctions against an officer of the defendant who allegedly
failed to appear for his deposition. The scheduled deposition did not
take place on the date noticed, however, and the court found that
there was an informal agreement that the deposition would not
proceed while the defendant pursued legal remedies to overturn the
court's order that the deponent appear for his deposition. Relying on
Estrada v. Rowland and Gee, supra, the court held that plaintiff had
failed to demonstrate that the witness actually failed to appear before
the officer who was to take his deposition and that sanctions under
Rule 37(d) were not proper.
Although Defendant noticed the Plaintiffs’ depositions on several occasions, those

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deposition dates were cancelled or postponed either by the Defendant’s counsel, by Plaintiffs’

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counsel or by Plaintiffs. It does not appear that either Plaintiff actually failed to appear at a noticed

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deposition and that Defendants’ counsel proceeded with the deposition and made a record of their

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nonappearance. An award of sanctions pursuant to Rule 37(d) is therefore not available. The

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Court further finds that the delay occasioned by Plaintiffs’ alleged conduct in delaying the taking

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of their depositions does not rise to the level of prejudice that would justify the imposition of the

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severe sanction of dismissal. Accordingly,
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IT IS HEREBY ORDERED that Defendant Dignity Health’s Motion for Dismissal and

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Monetary Sanctions (#72) and Defendant Payflex’s Joinder to the Motion to Dismiss (#74) are

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denied.

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DATED this 18th day of December, 2013.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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