Brown v. Jachowicz et al

Filing 45

ORDER signed by Judge Pamela Pepper on 6/30/2016 DENYING 26 Defendants' Motion to Dismiss. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHRISTOPHER DANIEL BROWN,
Plaintiff,
v.

Case No. 15-cv-237-pp

ROBERT B. JACHOWICZ, et al.
Defendants.
______________________________________________________________________________
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS (DKT. NO. 26)
______________________________________________________________________________
The defendants filed a motion to dismiss on April 6, 2016. Dkt. No. 26. In
support of that motion, the defendants filed a brief and two affidavits. Dkt. Nos.
27-29. They argue that the court should dismiss this case with prejudice for
failure to prosecute because the plaintiff failed to appear for his noticed
deposition. Dkt. No. 27 at 6. They also seek an award of costs totaling over
$2,500.00 for attorney fees and court reporter charges associated with the
noticed deposition. Id.; Dkt. No. 33 at 2.
Specifically, the motion states that on February 5, 2016, the defendants
sent the plaintiff a notice of deposition for March 10, 2016 at their offices. Dkt.
No. 27 at 2. The plaintiff responded by e-mail that he could not make that date,
and asked the defendants to contact him about alternate dates. Id. The
defendants sent the plaintiff an e-mail asking him to provide ten dates when he
would be available for the deposition. The plaintiff told them that he could be
available “during the day in the month of March.” Id. The defendants told the
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plaintiff that after 4:00 p.m. was too late, and that the March 10, 2016
deposition would not be canceled, but they also asked the plaintiff for five to
ten dates that he was available. Id. at 3. They made this request again a week
later, and told the plaintiff that they would not cancel the March 10 deposition
if he didn’t give them alternate dates. The plaintiff responded that he couldn’t
attend a 10:00 a.m. deposition. The defendants then “remind[ed] [the plaintiff]
that in a February 10, 2016 email he stated he would be available during the
day.” Id. The plaintiff responded that he “should” be available during the day,
and would keep the defendants informed. Id. By March 2, 2016, the defendants
still hadn’t received alternate dates, and told the plaintiff that the March 10
deposition had not been canceled. They reminded him again on March 9. Id. at
3-4. The plaintiff did not appear on March 10, 2016. Id. at 4. 
In his response to the defendants’ motion to dismiss, filed on April 14,
2016, the plaintiff indicated that he recently had been released from
incarceration, and has obtained work through a staffing agency. He reports
that the defendants asked him for ten dates for the deposition. He responded
that he would be available any time after 4:00 p.m. Dkt. No. 31 at 1. The
defendants replied that that was too late for them. The plaintiff then told them
the times he was available (given his work schedule), but the defendants
rejected those times. Id. He also states that he told the defendants that his
work schedule would change in the near future (he’d be moved to second shift),
and that at that point, he’d be better able to schedule a deposition during the
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day. Id. The plaintiff asks the court to deny the defendants’ motion and for
additional time to come to come to a resolution that would permit the
defendants to depose him. Id.
The defendants filed a reply brief insisting that the plaintiff never
provided any alternative dates to defense counsel for his deposition and
quantifying their request for costs as $2,952.00 in attorney fees and $123.65 in
court reporter fees. Dkt. No. 32 at 3. For the first time in their reply brief, the
defendants ask the court for alternative relief—an amended scheduling order
and an order compelling the plaintiff to submit to a deposition. Id. at 3-4.
The defendants attached to their motion to dismiss several e-mails. The
first one, from the plaintiff to the defendants’ law firm on February 8, 2016,
indicated that the plaintiff could not attend the March 10, 2016 deposition,
and that the defendants would have to write to him to determine when he
would be free. Dkt. No. 29-2. The defendants did that on February 9, 2016,
stating, “Please advise about 10 dates that you are available for your deposition
to be taken and I will review attorney Wolfgang’s schedule and find a date that
works.” Dkt. No. 29-3. The plaintiff wrote back on February 10, 2016 at 4:40
p.m. Dkt. No. 29-4 at 1. In this message, the plaintiff stated, “As of right now
anytime after 4pm. In the month of March I will be available during the day.
However, I am not sure of the exact date of my work schedule change just yet.
Please let me know if that time is to late for you.” Id. The actual response email from the defendants stated,
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After 4pm is late for our Attorneys to do a deposition. Please
advise, as soon as you know, what dates in March you will be
available. At this time I will NOT cancel the deposition that is
currently scheduled for March 10, 2016 just in case that date does
work with your new schedule. Giving at least 5 to 10 dates that
you have availability will assist us greatly if rescheduling is
needed. Please keep in mind that this deposition must be
completed prior to April 15, 2016.
Dkt. No. 29-5 at 1. The plaintiff’s February 18, 2016 2:45 p.m. response (after
another reminder e-mail) stated, “I will not be able to make any appointment at
10am.” Dkt. No. 29-7 at 1. After the defendants sent another e-mail, noting
that the plaintiff had told them he’d be available during the day in the month of
March, the plaintiff responded on February 19, 2016 at 5:09 p.m. with the
following message:
Let me be more clear, I should be available during the day. I am
working a temp to hire job and I cannot afford to miss a day. I
believe my work schedule will change soon and thus make me
available for a day time appointment, but I cannot get a direct
answer from this job. I will keep you posted.
Dkt. No. 29-9 at 1. While the plaintiff sent the defendants other e-mails before
the March 10 deposition date, none of those other e-mails provided alternative
dates or addressed the issue of scheduling the deposition.
On May 31, 2016, the defendants filed a motion for summary judgment,
pursuant to the court’s original scheduling order entered December 28, 2015.
Dkt. Nos. 35, 20.
Although the court has the power to dismiss a case with or without
prejudice for lack of diligence, the court will not exercise that power under
these circumstances. The e-mail chain, read in its entirety, demonstrates a
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series of miscommunications and crossed wires. After he received the notice of
March 10, 2016 deposition, the plaintiff clearly responded that he could not
make the March 10 date. The plaintiffs then asked him to give them ten dates
that would work for him. Admittedly, the plaintiff’s response was confusing—he
told the defendants that “as of now”—presumably February 10, the day he sent
the message—he was available any time after 4:00 p.m., that in the month of
March he would be available during the day, but that he wasn’t sure of the
exact date of his work schedule change. One can infer from that message that
the plaintiff would be available only after 4:00 p.m. during the month of
February, but that his work schedule would change sometime near the end of
February or early March, and that then he’d be available during the day. But
that’s not exactly what the message says, and the plaintiff already had told the
defendants that he couldn’t attend on March 10.
The defendants (actually, a paralegal in the defendants’ law office)
responded that the attorneys wouldn’t conduct depositions after 4:00 p.m., and
that she was going to leave the March 10 date on the calendar just in case the
plaintiff’s work schedule changed in such a way that he could attend. She also
asked him to give five to ten alternative dates that would work for him. Rather
than providing alternative dates, the plaintiff responded that he could not
attend any deposition scheduled at 10:00 a.m. The paralegal, going back to the
plaintiff’s February 10 message, reminded the plaintiff that he’d said he’d be
available during the day in March. On February 19, perhaps realizing that his
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February 10 message had been a bit confusing, the plaintiff responded that he
was working a temp job and couldn’t miss a day of work, but that he
anticipated that his schedule was going to change and he’d keep the
defendants updated.
It is true that none of the plaintiff’s e-mails contained alternate dates, as
the defendants had requested. Apparently, however, the defendants (or the
paralegal) didn’t consider the possibility that the plaintiff didn’t provide
alternative dates because his work schedule never changed. He told the
defendants that he could not make the March 10 date. He told them that he
could not make any deposition scheduled at 10:00 a.m. He told them that he’d
let them know when his work schedule changed. The plaintiff gave the
defendants two options: (1) schedule the deposition for a time after 4:00 p.m.,
or (2) schedule a deposition after whatever date the plaintiff’s work schedule
changed.
Perhaps it would have helped improve communications if the plaintiff
had, each time the defendants sent him another e-mail, responded by saying,
“My work schedule STILL hasn’t changed. I STILL cannot attend the March 10
deposition.” Perhaps it also would have helped if the defendants had said to the
plaintiff, “Because you can’t attend the March 10 deposition, we’ll take the
hearing off the calendar. If we don’t hear from you with alternative dates by [a
date certain], we’ll ask the court to help us find a date that works or all of us.”
Instead, the defendants insisted on keeping the deposition on a date they knew
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the plaintiff could not attend, and incurring the costs of setting up a deposition
they knew would not take place. The costs they incurred are based on that
decision, not on any lack of diligence on behalf of the plaintiff.
Further, the court notes that the March 10 deposition date upon which
the defendants insisted was some fifty (50) days before the discovery cut-off.
The defendants could have moved the deposition date to a date later in March,
or even into early April. Instead, they filed the instant motion to dismiss on
April 6, 2016—nine days before the date they told the plaintiff that his
deposition had to be completed, and over three weeks from the deadline for
completing discovery. The court expects that counsel for the defendants has a
busy practice and can’t just conduct a deposition on a moment’s notice, on any
day. But as of the date of the plaintiff’s last message to the defendants about
the deposition (February 19, 2016), the defendants had a seventy-day window
in which to reschedule the deposition—time to ask for the court’s assistance, if
they felt that was what was needed. The defendants’ choice to hold the
deposition despite the plaintiff’s inability to appear does not warrant the harsh
sanction of fees and costs.
The fact remains, however, that the defendants remain entitled to take
the plaintiff’s deposition, if they still wish to do so. Because the plaintiff
brought this lawsuit, he cannot avoid being deposed simply by saying, “I work
all the time and can’t be deposed.” By the same token, the defendants should
take into account that it is difficult enough for a person who has recently been
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released from prison to find a job, much less to be able to take time off of it.
The parties should work together to determine a mutually agreeable date and
time for the plaintiff’s deposition.
If the defendants decide they still wish to take the plaintiff’s deposition,
and would like to incorporate the information they obtain at that deposition
into their May 31, 2016 motion for summary judgment, they should, within ten
(10) days of this order, file a motion asking to withdraw their motion for
summary judgment. If they do so, the court will provide a new deadline for
dispositive motions.
The court DENIES the defendants’ motion to dismiss. Dkt. No. 26. The
parties should work together to determine a mutually agreeable date and time
for the plaintiff’s deposition.
Dated in Milwaukee, Wisconsin this 30th day of June, 2016.

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