Rokusek v. State of South Dakota et al

Filing 31

ORDER denying as moot 21 Motion to Dismiss; denying 23 Motion to Dismiss, but sanctions in the amount of $1,140.25 will be awarded against any settlement or judgment for Plaintiff in this case. The lawyers for the parties should immediate ly confer regarding a modest extension of deadlines in the Court's Rule 16 Scheduling Order, and they should submit proposed dates to the Court on or before Monday, February 27, 2017. Signed by U.S. District Judge Lawrence L. Piersol on 2/17/17. (DJP)

UNITED STATES DISTRICT COURT

FEB 1 7 2017.
DISTRICT OF SOUTH DAKOTA
CLERK

SOUTHERN DIVISION
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TROY ROKUSEK,

CIV. 16-4056

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Plaintiff,

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-vs-

MEMORANDUM OPINION

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AND ORDER DENYING

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CODY JANSEN,Individually,

MOTION TO DISMISS

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Defendant.
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Defendant Cody Jansen movesfor dismissal ofPlaintiffTroy Rokusek's Complaint pursuant

to Rule 37(d)(l)(A)(i)(3) of the Federal Rules of Civil Procedure for failure to comply with
discovery. (Doc. 23.) Jansen resists the motion.(Doc. 28.) For the following reasons, the motion
to dismiss will be denied but other sanctions will be imposed for Plaintiffs failure to appear at his
deposition.

BACKGROUND

The dispute addressed in this Order arises out of the deposition of Plaintiff noticed by
Defendant for December 15, 2016. Counsel for Defendant attests that he served Plaintiff with a
Notice ofDeposition by mailing it to him at the address on file. (Doc. 24 at 2.) The Notice, which

specified the date,time and location ofthe deposition, was never returned and Plaintiffdid not object
or respond to it. (/J.) On December 15, 2016, defense counsel traveled from Sioux Falls to

Vermillion. He, along with a court reporter and a videographer, appeared in advance of 10:00 a.m.
on that day and waited until 10:45 before leaving.(M)Plaintiff did not appear. Defendant seeks to
recoverfrom Plaintiff$680.00 in attorney's fees for travel and appearance atthe deposition, $210.91
for the court reporter's costs, and $249.34 for the videographer's expenses.

Defendant also complains that Plaintiffhas not fully answered interrogatories. In two earlier
motions filed by Defendant, counsel for Defendant did not assert that Plaintiffs answers were

incomplete;rather,Defendant wanted the answers to the interrogatories signed,dated and notarized.
(Docs. 18 and 21.) This Court issued orders on October 28 and November 23, 2016, directing
Plaintiffto sign his interrogatory answers under oath and to serve a copy on defense counsel. (Docs.
20 and 22.) In the second order,the Court warned Plaintiffthat it would consider whether to dismiss
his lawsuit if he failed to comply.(Doc. 22.) Plaintiff obviously complied with that Order because
defense counsel's letter to Plaintiff dated November 29, 2016 refers to answers "which you dated

November 25, 2016." (Doe. 24-1.) Defense counsel now asserts the answers are incomplete, and
he attaches a copy of the November 29 letter to Plaintiff asking for additional information in
response to interrogatories 9 and 15. (Doe. 24-1.) Defendant has not, however, filed a motion to

compel that information, and Plaintiffs new lawyers promise to complete the answers. {See doe.
28at2.)

In his response to the Motion to Dismiss,Plaintiffdoes not deny that he received the Notice
ofDeposition or that he failed to appear. He explains that his first lawyer, Mike Marlow, withdrew
from the case by Order dated September 21, 2016, but Marlow continued to assist with settlement
negotiations. In his sworn affidavit. Plaintiffexplains that once it became clear that settlement was

not a viable option and that Plaintiff needed to secure new counsel, he began his search. Plaintiff
worked with lawyers at the Crary Huff Law Firm in Dakota Dunes in November and December,
2016,until they declined representation and gave him the names oftwo lawyers"in Sioux Falls: Rick
Ramstad and R. Shawn Tomow. Neither of those lawyers were willing to take on his ease. On

January 19, 2017,Plaintiff successfully retained Jeff Montpetit from Mirmeapolis and Tim James
of James Law, P.O. in Yankton. On January 23, 2017, Plaintiffs new lawyers filed Plaintiffs
Memorandum in Opposition to Defendant Jansen's Motion to Dismiss and Motion to Amend the
Rule 16 Scheduling Order.(Doe. 28.) They argue that Plaintiff did not willfully violate a court
order and that Defendant has not demonstrated any prejudice. As they explain:

Plaintiffis not an attorney,and has little to no experience with either State or Federal
Courts, let alone section 1983 litigation. (Docket 26 Affidavit of Rokusek).

Moreover, he did not want to have his deposition taken without the assistanee of
counsel. Plaintiff sought representation hy contacting 4 different attorneys, all of
whom ultimately rejeeted his case but only after some level ofdue diligence. Further
complicating the task of securing new counsel is the fact that this is a federal civil
rights ease, brought pursuant to 4"^ and 14* Amendments of the United States
Constitution. Simply stated, it is an area of the law that not all plaintiffs' attorneys
practice. The fact that it took Plaintiff a couple of months to secure competent
counsel is oflittle surprise. Plaintiffis not an attorney, and has never expressed his
desire to proceed pro se, has diligently sought representation and as such, he has
never willfully violated the orders ofthis Court.

(Doe.28 at2.) Additionally,Plaintiffslawyers indicate thatthey are competentin section 1983 civil
rights matters and will be able to complete discovery now that they represent Plaintiffin this case.

(/J.) Defendant dismisses Plaintiffs explanation for failing to comply with discovery, arguing it is
no excuse that Plaintiff is not a lawyer. (Doe. 30.)

DISCUSSION

As authority for requesting dismissal ofthe ease and sanctions against Plaintiff, Defendant
cites Farnsworth v. City ofKansas City, Mo.,863 F.2d 33, 34(8th Cir. 1988)(per euriam), where
the Eighth Circuit affirmed the district court's dismissal with prejudice ofthe pro se plaintiffs' ease
"for failure to comply with the district court's orders to cooperate with appellees in preparing a

discovery schedule." Id. at 34. It is not clear, however, how egregious the Farnsworth plaintiffs'
failures were and thus it is not possible to compare the facts ofFarnsworth with what happened in

the present ease. We do know that the district court in Farnsworth gave the plaintiffs"meaningful
notice ofwhat was expected ofthem during the course ofdiscovery,initially imposed less stringent

sanctions when they failed to cooperate, and wamed them that their failure to comply with
subsequent court orders would result in dismissal oftheir action." Id.

In other eases,the Eighth Circuit has held that"dismissal with prejudice for failure to comply
with discovery rules is an extreme sanction, often reserved for willful or had faith default [.]"
Anderson v. HomeIns. Co.,724 F.2d 82,84(8th Cir. 1983)(citing Societe Internationale v. Rogers,

357 U.S. 197,212(1958)). The plaintiffin

was found to have deliberately defaulted by

completely ignoring interrogatories for four months and failing to coinply with a court order

directing him to answer the interrogatories. See id. at 84. The Eighth Circuit said that the plaintiffs
complete silence warranted the severe sanction ofdismissal, particularly in light ofthe fact that the
district court had dismissed his two previous suits for incomplete answers to interrogatories. See id.
Defendant has not filed a motion to compel Plaintiff to supplement his answers to
interrogatories 9 and 15, and there is reason to believe that Plaintiff, with his new lawyers, will
supplement those answers. Plaintiffs earlier failure to sign his interrogatory answers under oath

does not warrant the severe sanction of dismissal. Unlike in Anderson, Plaintiff did not ignore the
interrogatories. Defendant received what was at first thought to be complete, albeit unsigned
answers to the interrogatories. (Doc. 19-2.) Plaintiff promptly complied with the second Order
directing him to sign and serve his answers. As noted by the Eighth Circuit in Farnsworth, it is

appropriate for a district court to initiallyimpose sanctions less stringent than dismissal when a party
fails to cooperate with discovery. The Court has not yet imposed any sanctions for Plaintiffs failure

to sign his interrogatory answers, supplement them, or anything else, so the extreme sanction of
dismissal is unwarranted at this time.

Federal Rule of Civil Procedure 37(d) allows a district court to dismiss an action or award
other sanctions ifa party fails to appear for his deposition. See Aziz v. Wright,34 F.3d 587,589(8th
Cir. 1994). Other possible sanctions include requiring the party who failed to appear to "pay the
reasonable expenses, including attorney's fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P.
37(d)(1)(A) and 37(d)(3). The decision to award sanctions pursuant to Rule 37(d), and the type of
sanctions to be awarded for a party's failure to attend his own deposition, is within the Court's
discretion. See id. A party may move for sanctions under Rule 37(d) without first filing a motion
to compel under Rule 37(a). Id.

The Court is not unsympathetic to Plaintiffs desire to have a lawyer with him at his
deposition. Plaintiffhas never expressed a desire to appear pro se, and it is clear from the record that

Plaintiff does not want to represent himself. Plaintiff began this lawsuit with a lawyer, and he
earnestly sought representation after his first lawyer withdrew and later was unable to reach a
settlement with Defendant. The record does not show whether defense counsel made any effort to

communicate with Plaintiff about a convenient date or time prior to sending him the notice of his
deposition, and this Court has never issued an order for Plaintiff to make himself available upon
reasonable notice by Defendant. These facts do not, however, excuse Plaintiffs failure to inform

Defendant that he could not or would not appear when his deposition was noticed, or his lack ofany
attempt to reschedule his deposition. The Court finds that Plaintiffs lack ofrepresentation does not

substantiallyjustify his failure to appear at his properly noticed deposition, and the Court concludes
that monetary sanctions are warranted,butthey will only be imposed ifPlaintiffreceives a settlement

or judgment in his favor in this case. The Court finds reasonable the fees and expenses requested
for Defendant's lawyer, the court reporter and the videographer to attend the deposition, in the
amount of$1,140.25. (Doc. 24 at 2.) Accordingly,

IT IS ORDERED:

1) That Defendant's Motion to Dismiss, doc. 23, is denied, but sanctions in the

amount of$1,140.25 will be awarded against any settlement orjudgmentfor Plaintiff
in this case;

2) That Defendant's Motion to Dismiss, doc. 21,is denied as moot; and

3) That the lawyers for the parties should immediately confer regarding a modest
extension ofthe deadlines in the Courfs Rule 16 Scheduling Order,and they should
submit proposed dates to the Court on or before Monday,February 27,2017.

Dated this 17th day of February, 2017.
BY THE COURT:

Eawrence L. Piersol

United States District Judge
ATTEST:

JOSEPH I^AS,j^LERK
BY:_

(SEAL)

DEPUTY