Perez et al v. Wagner Transportation et al

Filing 83

ORDER that #76 MOTION to Compel Discovery and/or Requests for Rule 37 Sanctions is GRANTED in part and DENIED in part. Signed by Magistrate Judge Peggy A. Leen on 4/24/14. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AMALIA PEREZ, et al.,

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Case No. 2:12-cv-01436-RCJ-PAL
Plaintiffs,

ORDER

v.
(Mot Compel Disc – Dkt. #76)
WAGNER TRANSPORTATION, et al.,
Defendant.

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The court conducted a hearing on Defendants Wagner Transportation and Lucretia Kay

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Chavez’s Motion to Compel Discovery and/or Request for FRCP 37 Sanctions for Plaintiffs’

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Failure to Participate in Discovery (Dkt. #76) on April 22, 2014. Benjamin Cloward appeared on

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behalf of the Plaintiffs, and Michael Hall appeared on behalf of the Defendants. The court has

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considered the Motion, Plaintiffs’ Opposition (Dkt. #78), Defendants’ Reply (Dkt. #80), and the

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arguments of counsel at the hearing.

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BACKGROUND
The Complaint (Dkt. #1) in this case was filed August 14, 2012. The Plaintiffs are the

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heirs of the Estate of Celso Caloca-Lopez, deceased. Plaintiffs filed a First Amended Complaint

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(Dkt. #4) (“FAC”) September 19, 2012. The FAC alleges that on August 16, 2010, the decedent

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Celso Caloca-Lopez was a passenger in a vehicle driven by his son, Defendant Eduardo Perez-

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Lopez. Id. ¶25. Eduardo Perez-Lopez was driving northbound on U.S. 93 in Elko County and

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lost control of his 2001 Ford Explorer. Id. ¶¶26-28. His loss of control resulted in a rollover

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accident. Id. ¶¶28-29. The decedent was ejected from the vehicle and fell on the center line of

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the road. Id. ¶30. Defendant Lucretia Kay Chavez was driving a tractor trailer owned by

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Defendant Wagner southbound on U.S. 93, and ran over the decedent. Id. ¶31. The FAC asserts

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claims for (1) negligence; (2) negligent entrustment; (3) negligence per se; (4) negligent hiring,
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retention and supervision; (5) respondeat superior; and (6) vicarious liability. The Complaint

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and FAC initially named Ford Motor Company as the Defendant. However, on February 21,

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2013, the district judge granted the parties’ stipulation dismissing Ford Motor Company with

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prejudice.

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In the current motion, the Defendants seek an order compelling Plaintiff Amalia Perez to

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answer interrogatories and appear for deposition. The Defendants also seek an order compelling

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Defendant Celso Perez-Lopez, Jr. to verify his answers to interrogatories and appear for

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deposition. Finally, Defendants seek an order compelling Gabriel Perez-Lopez to provide

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verification for his answers to interrogatories. Amalia Perez failed to appear for depositions

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twice in this case. Celso Perez-Lopez also failed to appear for his deposition twice. However,

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he has been incarcerated in Salt Lake City, Utah, and has responded to interrogatories, although

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he did not verify his answers. Defendants request sanctions under Fed. R. Civ. P. 37(d) asserting

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that the Plaintiffs’ failure to comply with their discovery obligations is neither substantially

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justified nor harmless . Defendants point out that sanctions for failure to attend a noticed

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deposition or failure to respond to discovery requests are mandatory unless the court finds that

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the failure was substantially justified or other circumstances make an award of expenses unjust.

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Some courts have held that dismissal is a proper sanction under Rule 37(d) for failing to appear

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for a scheduled deposition. Defendants suggest that the appropriate sanction in this case is to

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preclude the non-complying Plaintiffs from participating at the trial of this matter.

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Plaintiffs oppose the motion asserting that Celso, Jr. was unable to attend his deposition

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because he has been in custody in Salt Lake City. Plaintiffs’ counsel originally believed he

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would be released earlier, and the parties stipulated to an extension of the discovery cutoff

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consistent with his anticipated date of release to depose him. However, Plaintiffs’ counsel

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recently learned that Celso, Jr. would be in jail an additional three months. Plaintiffs are willing

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to set up a deposition at the Salt Lake City jail and cover the Defendants’ expenses for the

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deposition.

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With respect to Amalia Perez, she lives in Mexico and cannot travel to the United States
because she does not have proper travel documents. Plaintiffs’ counsel has requested that
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Defendants’ counsel take her deposition via telephone, but Defendants have not agreed to do so.

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Plaintiff’s counsel acknowledges that verifications are still needed and promises to move swiftly

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to get them completed. Plaintiffs also acknowledge that Amalia Perez has not responded to

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interrogatories. However, Plaintiffs argue that exclusion of Amalia and Celso, Jr. at trial is an

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extreme sanction that is not warranted under the circumstances of this case. Counsel for Plaintiff

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asks that the court deny the motion and allow the parties to come to an agreement in resolving

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the discovery issues at hand because the Plaintiffs are willing to work with Defendants.

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During oral argument, counsel for Plaintiffs presented the verifications for Celso, Jr. and
Gabriel Perez-Lopez’s answers to interrogatories. The court requested clarification from counsel

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for Plaintiffs why Amalia Perez was unable to travel, whether she had applied for travel

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documents and had been denied, whether an immigration issue precluded her from entering the

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United States, or whether she was just not cooperating with counsel. Counsel for Plaintiffs

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indicated he did not know the reasons his client could not obtain travel documents or enter the

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United States. He indicated that she lives in a small town, one-and-a-half hours away from a

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major city, and has not been in communication with counsel. Plaintiffs’ counsel has been in

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communication with her children, who are Plaintiffs in this case, who have had regular contact

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with her. However, she has not responded to efforts to obtain discovery from her, or been in

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contact with counsel.

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DISCUSSION

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Rule 37 authorizes a wide range of sanctions for a party’s failure to engage in discovery.

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The court has authority under Rule 37(b) to impose litigation-ending sanctions. See Shepherd v.

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American Broadcasting Co., Inc., 62 F.3d 1469 (D.C. Circuit 1995) (holding the court may

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impose litigation-ending sanctions where it finds by clear and convincing evidence that abusive

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litigation behavior occurred unless their sanction would not sufficiently punish and deter the

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misconduct). In Stars’ Desert Inn Hotel & Country Club, Inc. v. Hwang, 105 F.3d, 521 (9th Cir.

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1997), the Ninth Circuit upheld the district judge’s entry of default judgment against a defendant

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for violating the court’s order to appear for his deposition after he repeatedly failed to submit to a

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deposition. Before a court may dismiss a case for non-compliance with discovery under Rule 37,
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the court must weigh five factors: (1) the public’s interest in expeditious resolution of litigation;

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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendant; (4) the public

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policy favoring disposition of cases on the merits; and (5) the availability of less drastic

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sanctions. Payn v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997).

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In this case, it is undisputed that Plaintiff Amalia Perez has not cooperated in discovery

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or been in recent communication with her counsel. She has not responded to written discovery

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served July 8, 2013, and has not appeared for two duly-noticed depositions. Counsel was unable

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to provide a satisfactory explanation for her failure to respond to discovery or keep in contact.

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Under these circumstances, the court will grant the motion to compel and require her to provide

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full and complete verified answers to interrogatories, without objections, no later than thirty

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days. The court will also require her to provide an explanation, under oath, concerning why she

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is unable to obtain travel documents to enter the United States to have her deposition taken in

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this case. Failure to timely comply with the court’s order compelling her to provide verified

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answers to interrogatories, and provide an explanation under oath for her failure to attend

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deposition, will result in a recommendation to the district judge of case-dispositive sanctions.

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Two other non-complying Plaintiffs have finally provided verification to their answers to

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interrogatories. Celso, Jr. has not been deposed only because he is incarcerated. During the

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hearing, counsel for Defendants indicated he would prefer not to travel to Salt Lake City to

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depose Celso, Jr. in custody. As Celso, Jr. has otherwise cooperated in providing discovery

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responses and has not appeared only because he is incarcerated, the court will allow the parties to

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depose him in Las Vegas upon his release outside the discovery cutoff.

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Having reviewed and considered the moving and responsive papers and arguments of
counsel,

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IT IS ORDERED that:

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1.

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Defendants’ Motion to Compel discovery and/or Requests for Rule 37 Sanctions

(Dkt. #76) is GRANTED in part and DENIED in part consistent with the body of this order.
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Plaintiff Amalia Perez’s failure to timely comply with this order compelling her to

provide verified answers to interrogatories, and an explanation under oath for her failure to
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attend two duly-noticed depositions will result in a recommendation to the district judge of case-

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dispositive sanctions.

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Should Plaintiff Amalia Perez timely comply with this order, counsel shall meet

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and confer to make arrangements for her deposition. If the parties are able to reach a mutually

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satisfactory arrangement, a stipulation and proposed order should be submitted to the court. If

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the parties are unable to agree, after a good-faith effort to resolve their dispute without court

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intervention, Defendants may apply to the court for appropriate relief.

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DATED this 24th day of April, 2014.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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