(PC) Williams v. Parsells ( 2023 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE WILLIAMS, Case No. 2:22-cv-00514-KJM-KJN (PC) 12 Plaintiff, [PROPOSED] ORDER 13 v. 14 15 R. PARSELLS, et al., 16 Defendant. 17 18 Plaintiff is a former state prisoner, proceeding pro se. On April 19, 2023, defendant filed 19 motions to compel and to modify the discovery and scheduling order (ECF No. 32), as modified 20 on February 10, 2023, and March 3, 2023 (ECF Nos. 36, 38). The scheduling order was 21 previously modified due to various difficulties in scheduling plaintiff’s deposition. 22 “The district court is given broad discretion in supervising the pretrial phase of litigation.” 23 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (citation and internal 24 quotation marks omitted). Rule 16(b) provides that “[a] schedule may be modified only for good 25 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). “The schedule may be modified 26 ‘if it cannot reasonably be met despite the diligence of the party seeking the extension.’” 27 Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (quoting 28 Johnson, 975 F.2d at 607). 1 In the instant motion, counsel states he worked with plaintiff to find a deposition date 2 compatible with plaintiff’s schedule, and counsel timely and properly noticed the deposition for 3 April 11, 2023, the date plaintiff agreed upon. On April 11, 2023, counsel and the court reporter 4 appeared for deposition, yet plaintiff failed to appear. Counsel called plaintiff and left a 5 voicemail inquiring whether plaintiff intended to appear, and left counsel’s phone number and 6 email address. Plaintiff did not respond. At 10:45 a.m., plaintiff still had not appeared; counsel 7 put the deposition on the record confirming that plaintiff failed to appear. As of April 19, 2023, 8 counsel has not received any response or correspondence from plaintiff explaining his failure to 9 appear or to meet and confer to reschedule the deposition. (ECF No. 39 at 5.) 10 Federal Rule of Civil Procedure 37 permits the court to impose sanctions -- including 11 dismissal -- on a party that fails to attend a properly noticed deposition. Fed. R. Civ. P. 37(d). 12 Circumstances must “overcome the strong policy favoring disposition of cases on their merits” to 13 justify terminating sanctions. United States for Use of Ben. Of Wiltec Guam, Inc. v. Kahaluu 14 Const. Co., Inc., 857 F.2d 600, 605 (9th Cir. 1988). In addition, the “harsh sanction” of 15 dismissal, even for “a party’s repeated failure to appear for deposition,” is only proper when the 16 failure “is due to the willfulness, bad faith, or fault of the party.” Stars’ Desert Inn Hotel & 17 Country Club, Inc. v. Hwang, 105 F.3d 521, 525 (9th Cir. 1997). 18 Here, the nature of plaintiff’s failure to appear is unclear, and the court notes plaintiff’s 19 previous cooperation with counsel in setting and re-setting the deposition as circumstances 20 required. Thus, the undersigned finds good cause to extend the discovery deadline but will 21 compel plaintiff’s deposition. Defendant is granted sixty days in which to re-notice and complete 22 plaintiff’s deposition. Plaintiff is cautioned that failure to cooperate in the deposition and to 23 attend and cooperate in the re-noticed deposition will result in a recommendation that this action 24 be dismissed. The pretrial motions deadline will also be extended. 25 All other provisions of the prior scheduling order remain in full force and effect. The 26 parties are cautioned that the undersigned is not inclined to further modify the scheduling order. 27 //// 28 //// ] Accordingly, IT IS HEREBY ORDERED that defendant’s motion (ECF No. 39) is granted: 2 1. Defendant is granted sixty days in which to re-notice and take plaintiffs deposition. 3 2. Plaintiff is ordered to appear for and fully cooperate with the properly noticed 4 || deposition. Plaintiff is cautioned that any failure to fully comply with this order may result in 5 || sanctions, as set forth in Rule 37(b)(2)(A), up to and including dismissal of this action with 6 || prejudice. 7 3. Discovery is extended for the next sixty days for the limited purposes of defendant 8 | properly noticing and taking plaintiffs deposition. In other words, plaintiff's deposition must be 9 || properly noticed, and must be completed, within sixty days from the date of this order. 10 4. The pretrial motions deadline is extended to August 21, 2023. All other provisions of 11 || the prior scheduling order remain in full force and effect. 12 || Dated: April 20, 2023 i Aectl Aharon 14 KENDALL J.NE UNITED STATES MAGISTRATE JUDGE 15 16 |} vinosi4.16b3 17 18 19 20 21 22 23 24 25 26 27 28