Smith et al v. Washington State et al

Filing 158

ORDER Denying Plaintiffs' 152 Motion for Sanctions and 153 Motion to Substitute; by Magistrate Judge J Richard Creatura.(GMR- cc: pltfs)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CALVINE MALONE, et al.
CASE NO. 14-cv-05974 RBL-JRC

Plaintiffs,

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ORDER

v.

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STATE OF WASHINGTON et al.,

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Defendants.

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Before the Court are plaintiffs’ motion for sanctions (Dkt. 152) and motion for

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substitution (Dkt. 153). For the reasons set forth herein, the Court finds that both motions are

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denied.

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BACKGROUND
On March 9, 2017, the undersigned ordered that plaintiffs’ motion to compel be granted,

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and that plaintiffs be allowed to depose eight defendants. Dkt. 146. On March 15, 2017, the

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parties conferred to discuss scheduling the depositions. Dkt. 155, Declaration of Craig Mingay.

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ORDER - 1

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1. Motion for Sanctions (Dkt. 152)

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Plaintiffs ask that the Court enter sanctions because defendant Sziebert failed to appear

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for a deposition, failed to notify plaintiffs or defense counsel prior to cancelling a deposition, and

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failed to provide a reason for cancelling the deposition. Dkt. 152. Plaintiffs ask that the Court

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enter sanctions against defendant Quigley based on an alleged pattern of delays, which

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necessitated extensions of the discovery timeline. Id. Plaintiffs ask the Court to determine the

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appropriate sanctions at the Court’s discretion. Id.

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In response, defendants provide the declaration of counsel Craig Mingay and Gregory
Ziser. Dkts. 155, 156. Mr. Mingay states that after the March 15, 2017 conference with plaintiffs,

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counsel for defendants began scheduling the depositions. Dkt. 155 at ¶ 5. Mr. Mingay worked

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with the Special Commitment Center (“SCC”) to make arrangements for a room and recording

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equipment, and that staff qualified to administer the oath were available. Id.

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On March 17, 2017, Mr. Mingay discussed scheduling a deposition with defendant

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Sziebert, who at the time, was out on annual leave. Id. Defendant Sziebert requested that the

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deposition be scheduled after his return from leave, on April 11, 2017. Id. Mr. Mingay did not

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provide written confirmation of the deposition to defendant Sziebert. Id. Defendant Sziebert

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failed to attend the deposition on April 11, 2017, and according to Mr. Mingay, due to defendant

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Sziebert’s leave schedule, recent change in job duties, and recent surgery, defendant Sziebert did

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not recall that the deposition had been scheduled. Id. On April 11, 2017, the parties conferred

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and agreed to reschedule defendant Sziebert’s deposition for April 21, 2017. Id. at ¶ 8. The

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parties then agreed to extend the discovery deadline to August 31, 2017. Id.

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According to Mr. Mingay, counsel for defendants sent a letter to defendant Quigley to

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schedule the deposition. Id. at ¶ 5. After defendant Quigley failed to respond to the letter, Mr.

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ORDER - 2

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Mingay called defendant Quigley to set up the deposition. Id. at ¶ 7. Mr. Mingay did not hear

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back from defendant Quigley, and followed up with an email. Id. On March 6, 2017, Mr. Mingay

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received an e-mail response from defendant Quigley, indicating that defendant Quigley was out

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of the country and would not be returning until May 3, 2017 and that defendant Quigley did not

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have reliable communications while traveling. Id. As of the date of this Order, neither party has

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updated the Court as to whether defendant Quigley’s deposition was conducted after May 3,

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2017.

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Rule 37(b)(2)(A) provides the Court with the power to issue such sanction orders as are

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“just” when a party has failed to comply with discovery orders. Such sanctions may include,

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inter alia, an order that the subject matter of the discovery shall be taken to be established in

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accordance with the party’s defense, or that the party may not support or oppose designated

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claims or defenses or introduce designated matters into evidence, or dismissing the action in

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whole or in part, or finding the party to be in contempt of court. Fed. R. Civ. P. 37(b)(2)(A)(i)-

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(vii); see also Roadway Express v. Piper, 447 U.S. 752, 763 (1980). If the sanction ordered is

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less than dismissal, the party’s noncompliance need not be proven to be willful or in bad faith.

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See, e.g., Von Brimer v. Whirlpool Corp., 536 F.2d 838, 843–44 (9th Cir. 1976).

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There is no factual or legal basis for a finding that defendants Sziebert or Quigley have

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failed to comply with this Court’s discovery order or that they have engaged in any willful or bad

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faith. Defendants provide sworn testimony that defendant Sziebert did not recall the scheduled

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deposition, which was rescheduled and completed on April 21, 2017. The delay in defendant

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Quigley’s deposition is due to defendant Quigley’s international travel. Plaintiffs have not

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presented any evidence that defendants intentionally failed to respond to discovery or conduct

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ORDER - 3

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the depositions. None of the circumstances here warrant the entry of sanctions against

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defendants. Accordingly, plaintiff’s motion for sanctions (Dkt. 152) is denied.

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2. Motion to Substitute (Dkt. 153)

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Plaintiffs also filed a motion to substitute. Dkt. 153. Plaintiffs cite as support for this

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motion Federal Rule of Civil Procedure 25(d). See id. Defendants filed a response. Dkt. 157.

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Federal Rule of Civil Procedure 25(d) gives a plaintiff the ability to substitute a public

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officer if the named defendant dies or otherwise ceases to hold office. Fed. R. Civ. P. 25(d).

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Plaintiffs now attempt to add additional defendant William Van Hook in both his personal and

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official capacity as the new CEO of the SCC. Dkt. 153.

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Pursuant to Rule 25(d), Mr. Van Hook’s substitution for previous CEO, Mark Strong, is

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automatic. Thus, to the extent that plaintiffs’ motion to substitute seeks to replace Mark Strong

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with William Van Hook as the SCC CEO, sued in his official capacity, plaintiffs’ motion to

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substitute is granted.

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However, to the extent that plaintiffs seek to add new claims against Mr. Van Hook in his

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personal capacity, the Court will not accept an amendment in this form and plaintiffs’ request is

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denied. If plaintiffs seek to add personal capacity claims against Mr. Van Hook, they must file a

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motion for leave to amend their complaint.

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Dated this 31st day of May, 2017.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER - 4