Del Castillo-Guzman et al v. Triple Canopy, Inc.

Filing 58

MEMORANDUM OPINION and ORDER. ORDERED that the Motion is GRANTED in part and DENIED in part. The Motions is granted to the extent that Defendant may recover from Plaintiff Castro-Rugel costs and fees incurred in preparing for Plaintiff Castro-Rugel& #039;s deposition. Defendant's Motion is denied in all other respects. Defendant is directed to submit the necessary supporting documentation concerning fees and expenses it seeks from Plaintiff Castro-Rugel are due within 7 days of the entry of this Order. Any objection s to those costs by Plaintiff Castro-Rugel are due within 14 days of receiving the documents setting forth Defendant's costs. Signed by Magistrate Judge Michael S. Nachmanoff on 2/1/2016. (rban, )

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
)
LUDWERD DEL CASTILLO-GUZMAN, )
et al.,
)
)
Plaintiffs,
)
v.
)
)
TRIPLE CANOPY, INC.,
)
)
Defendant.
)
)

Civil No. 1:15-cv-799-CMH-MSN

Memorandum Opinion & Order
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff Castro-Rugel
as Sanctions (Dkt. No. 39). For the reasons that follow the Court will grant the Motion to the
extent of Defendant’s request for fees and deny it in all other respects.
I. Background
Defendant Triple Canopy hired Plaintiffs Ludwerd Del Castillo-Guzman and Juan
Castro-Rugel in 2007 to provide security services abroad in Iraq and Afghanistan. Plaintiffs
ceased working for Defendant in 2010 and 2009 respectively. In May of 2015, Plaintiffs and two
other similarly situated individuals—Alejandro Cerna-Motta and German Tamani-Fasabi—filed
suit against Defendant in Virginia state court alleging, in relevant part, breach of contract and
violations of the Virginia Minimum Wage Act based upon their previous employment.
Defendant removed the action to this Court in June of 2015.
On October 22, 2015, Defendant served its first written discovery requests upon
Plaintiffs. When Plaintiffs failed to respond, Defendant filed a motion to compel on November
13, 2015. Shortly thereafter, Plaintiffs’ counsel moved to withdraw from the case. The Court

granted both the motion to compel and the motion to withdraw after advising Plaintiffs of their
responsibility to comply with discovery requests. Plaintiffs have since proceeded in this matter
pro se.
On December 11, 2015, Defendants served notices of deposition on Plaintiffs. Only
Plaintiff Castillo-Guzman, however, appeared for his scheduled deposition. Following their
failure to appear, both Alejandro Cerna-Motta and German Tamani-Fasabi voluntarily dismissed
their claims against Defendant. Defendant now moves under Federal Rule of Civil Procedure 37
to dismiss Plaintiff Castro-Rugel based on his failure to attend his scheduled deposition.
According to Defendant, Plaintiff Castro-Rugel represented that “he would not attend, he did not
want anything more to do with this case, and did not want to travel to Virginia again.”
II. Discussion
Where a party seeks the entry of default or dismissal as a sanction under Federal Rule of
Civil Procedure 37, the analysis entails a four part test that inquires “(1) whether the
noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his
adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to
produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the
effectiveness of less drastic sanctions.” Mut. Fed. Sav. & Loan Ass’n v. Richards & Associates,
Inc., 872 F.2d 88, 92 (4th Cir. 1989). This inquiry is intended to “insure that only the most
flagrant case, where the party’s noncompliance represents bad faith and callous disregard for the
authority of the district court and the Rules, will result in the extreme sanction of dismissal or
judgment by default.” Id. The Fourth Circuit has admonished that the Court’s power to dismiss
an action as a discovery sanction “is appropriately exercised only with restraint.” Dove v.
CODESCO, 569 F.2d 807, 810 (4th Cir. 1978).

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Applying the four-part test discussed above, and in light of the strong preference
expressed in the law for deciding a case on its merits, the “extreme sanction of dismissal,” Mut.
Fed. Sav. & Loan Ass’n, 872 F.2d at 92, is not warranted here. First, Defendant does not put
forth compelling evidence that Plaintiff Castro-Rugel acted in bad faith in failing to appear at his
scheduled deposition. Plaintiff Castro-Rugel is proceeding in this matter pro se, and as
Defendant acknowledges, faces a language barrier in prosecuting his case. Moreover, Defendant
only noticed Plaintiff Castro-Rugel’s deposition after his attorney withdrew. It is not clear to the
Court that Plaintiff Castro-Rugel’s failure to appear at his deposition was motivated by “callous
disregard for the authority of the district court,” id., as opposed to mere confusion.1
Second, based on the record before the Court, Defendant has not suffered any significant
prejudice by virtue of Plaintiff Castro-Rugel’s failure to appear at his deposition. Defendant has
filed a Motion for Summary Judgment (Dkt. No. 52) based upon what Defendant characterizes as
“undisputed” facts. Given the nature of the defenses raised in that Motion, it is not clear what
information Plaintiff Castro-Rugel could have supplied that would have bolstered Defendant’s
arguments. Moreover, while Defendant claims Plaintiff Castro-Rugel’s failure to appear at his
deposition nine days before the close of discovery precluded Defendant from pursuing the matter
further, this is not the case. Setting aside that it was Defendant who delayed noticing Plaintiff
Castro-Rugel’s deposition until shortly before the close of discovery, Defendant could easily
have filed and obtained a ruling upon a motion to compel before that deadline. Alternatively,
Defendant could have requested a limited extension of the discovery cutoff for purposes of
taking Plaintiff Castro-Rugel’s deposition. Defendant’s failure to pursue those avenues
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To the extent Defendant claims that Plaintiff Castro-Rugel has represented that he no longer desires to participate
in this lawsuit, the Court notes that Plaintiff Castro-Rugel has not voluntarily withdrawn from this action as did
Alejandro Cerna-Motta and German Tamani-Fasabi. Moreover, given the acknowledged language barrier between
Defendant and Plaintiff Castro-Rugel, the Court cannot be confident that Defendant’s impressions of Plaintiff
Castro-Rugel’s willingness to prosecute this case do not stem from a miscommunication.

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demonstrates that Defendant has not suffered the sort of prejudice that would justify dismissing
Plaintiff Castro-Rugel’s claims without reaching their merits.
Third, it is not clear to the Court that Plaintiff Castro-Rugel’s failure to appear at his
scheduled deposition resulted from the sort of gamesmanship that would justify dismissing his
claims to deter others from repeating his actions. Fourth and finally, it appears to the Court that a
less drastic sanction could have sufficed to bring Plaintiff Castro-Rugel into compliance with his
discovery obligations. As Defendant acknowledges, Plaintiff Castro-Rugel earlier complied with
this Court’s order on Defendant’s previous motion to compel.2 Defendant provides no reason as
to why this more moderate course of action would not have been effective in obtaining Plaintiff
Castro-Rugel’s deposition. Defendant, however, chose not to file such a motion, seeking instead
the exceptional sanction of dismissal. In light of the above, Defendant has not demonstrated that
dismissal is appropriate.
As for Defendant’s request for costs and legal fees, however, Rule 37 places the burden
on Plaintiff Castro-Rugel to demonstrate that his failure to attend his scheduled deposition was
justified. As Plaintiff Castro-Rugel has failed to respond to Defendant’s motion, he has not
carried that burden. See Burgess v. Costco Wholesale Corp., No. 10-cv-1678, 2013 WL 105180,
at *2 (D.S.C. Jan. 8, 2013). Accordingly, the Court will grant Defendant’s motion insofar as it
requests costs and fees incurred in preparing for Plaintiff Castro-Rugel’s deposition.
III. Conclusion
For the reasons stated above, it is hereby
ORDERED that the Motion is GRANTED in part and DENIED in part. The Motion is
granted to the extent that Defendant may recover from Plaintiff Castro-Rugel costs and fees

2

Although Defendant now characterizes Plaintiff Castro-Rugel’s compliance as deficient, Defendant did not seek to
compel any further discovery.

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incurred in preparing for Plaintiff Castro-Rugel’s deposition. Defendant’s Motion is denied in all
other respects. Defendant is directed to submit the necessary supporting documentation
concerning fees and expenses it seeks from Plaintiff Castro-Rugel within seven days of the entry
of this order. Any objections to those costs by Plaintiff Castro-Rugel are due within fourteen
days of receiving the documents setting forth Defendant’s costs.
The Clerk is directed to forward copies of this Order to all counsel of record and to
Plaintiffs, pro se, at the addresses provided.
ENTERED this 1st day of February, 2016.
/s/
Michael S. Nachmanoff
United States Magistrate Judge
Alexandria, Virginia

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