Coleman v. Altec, Inc.

Filing 21

ORDER granting 18 Motion to Compel. Signed by US Magistrate Judge James E. Gates on 10/10/2017. Emailed to plaintiff at [e-mail] and sent by overnight mail. (Briggeman, N.)

IN THE UNITED STATES DISTRICT cpuRT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
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5:16-CV-954-D
LEROY COLEMAN, JR.,
Plaintiff,
V.

ALTEC, INC.,
Defendant.

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ORDER

This case comes before the court on the motion (D.E. 18) filed by defendant Altec, Inc.
("defendant") to compel plaintiff Leroy Coleman, Jr. ("plaintiff') to appear for his deposition
currently scheduled for 13 October 2017. No opposition to the motion has been filed. For the
reasons set forth below, the motion will be allowed.
I.

Background

Plaintiff, who is proceeding pro se, commenced this employment discrimination action
against defendant, alleging that defendant discriminated against him on the basis of his race and
subjected him to a hostile work environment. See generally Compl. (D.E. 5). Defendant denies
the material allegations of plaintiffs complaint. See generally Def.'s Ans. (D.E. 8).
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Plaintiff did not appear for his previously noticed

depo~ition

on 19 September 2017.

Robin Shea Declaration (D.E. 19-1) ~ 12. The deposition has been rescheduled for 13 October
2017, the last day of discovery pursuant to the Scheduling Order (D .E. 13) entered in this case,
and defendant seeks a court order compelling plaintiffs attendanc?. Id ~~ 13, 14.
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II.

Applicable Legal Principles

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The Federal Rules of Civil Procedure enable parties to bbtain information by serving
requests for discovery on each other, including a notice of deposition. See generally Fed. R. Civ.
P. 26-37. Rule 26 provides for a broad scope of discovery:

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Parties may obtain discovery regarding any nonprivileged matter that is relevant
to. any party's claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be admissible in evidence to
be discoverable.
Fed. R. Civ. P. 26(b)(l).
The district court has broad discretion in determining relevance for discovery purposes.

Seaside Farm, Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016); Watson v. Lowcountry
Red Cross,"974 F.2d 482, 489 (4th Cir. 1992). The party resisting discovery bears the burden of
establishing the legitimacy of its objections. Eramo v. Rolling Stone LLC, 314 F.R.D. 205, 209
(W.D. Va. 2016) ("[T]he party or person resisting discovery, not the party moving to compel
discovery, bears the burden of persuasion." (quoting Kinetic Concepts, Inc. v. ConvaTec Inc.,
268 F.R.D. 226, 243 (M.D.N.C. 2010))).
Rule 30 governs depositions. Fed. R. Civ. P. 30. It provides that "[a] party may, by oral
questions, depose any person, including a party, without leave of court except as provided in
Rule

30(a~(2).

The deponent's attendance may be compelled by subpoena under Rule 45." Fed.

R. Civ. P'. 30(a)(l). A party intending to depose an individual; must give reasonable written
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notice to all parties, stating the time and place of the deposition. Fed. R. Civ. P. 30(b). Rule 30

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provides :that the court may impose sanctions, including attorney's fees or expenses, on any
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person who "impedes, delays, or frustrates the fair examination o~the deponent." Fed. R. Civ. P.
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30(d)(2).

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Rule 37 allows for the filing of a motion to compel a pariy' s attendance at a deposition.

See Fed. R. Civ. P. 37(d). Rule 37 permits a court to order sanctions if "a party ... fails, after
being served with proper notice, to appear for that person's C.leposition."

Fed. R. Civ. P.

37(d)(l)(A).

III.

Discussion

As noted, by its motion, defendant seeks an order compelling plaintiffs attendance at his
own deposition scheduled for 13 October 2017. Having failed to respond to defendant's motion,
plaintiff does not contest the relief defendant seeks or the grounds advanced by defendant for it.
Irrespective of the unopposed nature of the motion, the court finds that plaintiff has failed to
comply with his discovery obligations under the Federal Rules of Civil Procedure. The court
therefore ALLOWS defendant's motion on the following terms:
1.

Plaintiff shall appear for his deposition on 13 October 2017 at 10:00 a.m. at the

State Bar Building, 217 E. Edenton Street, Room 104E, Raleigh, North Carolina, 27601.
2.

Failure by plaintiff to comply with this Order may result in the imposition of

sanctions against him. These sanctions may include, but are not limited to: (1) prohibiting
plaintiff from supporting or opposing designated claims or defenses, or from introducing
designated matters in evidence; (2) striking pleadings in whole or in part; (3) staying further
proceedings until this Order is obeyed; (4) dismissing this case in whole or in part; (5) treating as
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contempt of court the failure to obey this Order; and/or (6) requiring payment of reasonable
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expenses and attorney's fees caused by the failure to appear. Fed] R. Civ. P. 37(b)(2)(A), (d)(3);

see also Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516j 519 (D. Md. 2000) (warning
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plaintiffs that a repeated failure to appear for their depositions may result in dismissal); Gordon

v. New England Tractor Trailer Training Sch., 168 F.R.D. 178, 181 (D. Md. 1996) (finding
plaintiff's failure to appear at his own deposition "was sufficiently severe to justify imposition of
sanctions").
IV.

Conclusion

In summary, for the reasons and on the terms set forth above, it is ordered that
defendant's motion to compel is ALLOWED. Plaintiff shall appear as directed at his deposition
scheduled for 13 October 2017 or risk the imposition of sanctions against him. The Clerk is
DIRECTED to serve a copy of this Order on plaintiff by email to [e-mail] as well
as by overnight mail.
SO ORDERED, this lDdayof0ctober2017.

Ja es E. Gates
United States Magistrate Judge

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