Campbell v. National Railroad Passenger Corp. ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
KENNETH CAMPBELL, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 99-2979 (EGS)
)
NATIONAL RAILROAD PASSENGER )
CORPORATION, )
)
Defendant. )
________________________________)
MEMORANDUM OPINION
When a plaintiff files a lawsuit, he takes on certain
responsibilities, including the duty to participate in discovery
in good faith. A component of this duty is that parties must
appear for properly noticed depositions. Robert Guerra and
Terrence Whitesides, two named plaintiffs in this putative class
action against the National Railroad Passenger Corporation
(“Amtrak”), failed to appear for their depositions during the
class-discovery phase of litigation. Pending before the Court is
Amtrak’s motion for relief under Federal Rule of Civil Procedure
37(d), which seeks exclusion of the legal claims of Guerra and
Whitesides and an award of costs and attorneys’ fees.
The failure of Guerra and Whitesides to appear for depositions
is disturbing and the Court finds itself required by Rule 37(d)
to award Amtrak some of the expenses incurred as a result of
that failure. Nevertheless, the Court “has the right, if not the
duty, to temper justice with understanding.” 8B Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2284
(3d ed. 2015). Because the existing record does not provide
detail regarding the plaintiffs’ claimed inability to pay or the
amount of costs and fees that Amtrak seeks to recover, the Court
requires more information before fashioning an appropriate
monetary sanction. In view of the fact that any prejudice caused
by plaintiffs’ actions can be cured by striking the evidence
they submitted in support of class certification, the Court
concludes that dismissal of their legal claims would be
excessive. Accordingly, upon consideration of Amtrak’s motion,
the response and reply thereto, the applicable law, and the
entire record, the Court GRANTS IN PART AND DENIES IN PART
Amtrak’s motion.
I. Background
On March 1, 2012, the Court entered an Amended Scheduling
Order. See Amended Scheduling Order, ECF No. 310. That Order
provided that Amtrak would be permitted to depose “any
individual who submits an affidavit, declaration, or statement
in support of Plaintiff’s Motion for Class Certification.” Id.
at 1. Plaintiffs Guerra and Whitesides each submitted
declarations in support of plaintiffs’ motion for class
certification. See Declaration of Robert Guerra, ECF No. 304-8
at 327–335; Declaration of Terrence Whitesides, ECF No. 304-8 at
2
521–27. Rather than deposing everyone who submitted a
declaration, Amtrak selected forty-one individuals, including
Guerra and Whitesides. See Declaration of Katherine L. Hoekman
(“Hoekman Decl.”), ECF No. 332-2 ¶ 4. In addition to the issues
with Guerra and Whitesides, scheduling issues arose regarding
other depositions, persuading the Court to grant two extensions
of the deposition deadline, for a total extension of twenty-four
days. See Minute Order of May 11, 2012; Minute Order of June 5,
2012.
A. Mr. Guerra Fails to Appear for a Deposition.
After significant difficulty scheduling Mr. Guerra’s
deposition, plaintiffs’ counsel informed Amtrak on June 6, 2012
that Mr. Guerra could be available for a deposition on June 7,
2012. See Hoekman Decl. ¶ 15. Mr. Guerra’s deposition was
noticed for 9:00 a.m. on June 7, 2012 in Washington, D.C. See
id. ¶ 19; Guerra Deposition Notice, Ex. K to Mot. to Exclude,
ECF No. 332-13. Shortly after 9:00 a.m., plaintiffs’ counsel
informed defendant’s counsel by phone that Mr. Guerra would not
be attending. See Hoekman Decl. ¶ 20. Plaintiffs’ counsel
explained the reasons more fully in an email later that morning:
We understand that Robert Guerra decided not to appear
for his deposition this morning out of his personal
concerns and fears of retaliation, including possible
retribution by former co-workers if he were to testify
at this time. . . . [W]e recognize that the court
reporter appearance fee must be paid. We will tender
that payment forthwith if Amtrak will agree not to pursue
3
any other monetary sanction against Mr. Guerra or
Plaintiffs’ counsel.
Ex. L to Def.’s Mot., ECF No. 332-14 at 2; see also Declaration
of Timothy B. Flemming (“Flemming Decl.”), ECF No. 341-1 ¶ 10.
Amtrak’s counsel had prepared for the deposition before it was
cancelled. See Hoekman Decl. ¶ 23.
B. Mr. Whitesides Fails to Appear for a Deposition.
Plaintiffs’ counsel suggested that Mr. Whitesides be deposed
in New York City on May 2, 2012 at 2:00 p.m. See id. ¶ 24. A
deposition notice for that date, time, and location was issued.
See id. ¶ 25; First Whitesides Dep. Notice, Ex. P to Def.’s
Mot., ECF No. 332-18. At 9:00 p.m. on May 1, 2012, plaintiffs’
counsel informed defendant’s counsel that the deposition could
not go forward. See Hoekman Decl. ¶ 26. Plaintiffs’ counsel had
“just received a phone call from Terrence Whitesides” who
“experienced a death in his family this evening, apparently a
relative to whom he was close.” Ex. Q to Def.’s Mot., ECF No.
332-19.
Plaintiffs’ counsel later proposed that the deposition take
place on May 23, 2012 at 2:00 p.m. in Washington, D.C. See Ex. R
to Def.’s Mot., ECF No. 332-20 at 2. Amtrak issued a deposition
notice for that date, time, and location. See Second Whitesides
Dep. Notice, Ex. T to Def.’s Mot., ECF No. 332-22. On May 22,
2012, plaintiffs’ counsel cancelled Mr. Whitesides’s deposition,
4
due to their inability to contact Mr. Whitesides. See Ex. U to
Def.’s Mot., ECF No. 332-23 at 2; Flemming Decl. ¶ 12
(“Plaintiffs’ counsel were unable to contact Whitesides after
repeated attempts. We kept trying, without success, right up to
the day before the deposition.”). Due to the short notice of
each cancellation, Amtrak’s attorneys had twice begun preparing
for Mr. Whitesides’s deposition. See Hoekman Decl. ¶ 30.
C. Amtrak Moves for Relief Under Rule 37(d).
Currently pending before the Court—and scheduled to be argued
on June 15, 2015—are plaintiffs’ motion for class certification
and defendant’s motion for partial summary judgment on the
plaintiffs’ disparate-impact claims. See Mot. to Certify Class,
ECF No. 303; Mot. for Partial Summ. J., ECF No. 328. Amtrak has
also moved to strike the individual claims of plaintiffs Guerra
and Whitesides, and for payment of attorney’s fees and costs in
connection with those plaintiffs’ failure to appear for
depositions. See Mem. in Supp. of Mot. to Strike Guerra and
Whitesides (“Mot.”), ECF No. 332-1. Plaintiffs oppose the
motion, Opp. to Mot. to Strike Guerra and Whitesides (“Opp.”),
ECF No. 341, and Amtrak has filed a reply brief. See Reply in
Supp. of Mot. to Strike Guerra and Whitesides (“Reply”), ECF No.
361. Because Amtrak’s motion to exclude raises a discrete issue
that is distinct from the motions to be argued on June 15th, the
Court finds that it is efficient to address the motion
5
separately. Because the parties’ positions on the motion to
exclude are clear from their pleadings, oral argument is
unnecessary.
II. Analysis
The Court’s authority to sanction parties for discovery
violations derives from Federal Rule of Civil Procedure 37,
which permits the Court, “on motion, [to] order sanctions if:
(i) a party . . . fails, after being served with proper notice,
to appear for that person’s deposition.” Fed. R. Civ. P.
37(d)(1)(A). There is no dispute that Guerra and Whitesides
failed to appear for properly noticed depositions. The dispute
is over the appropriate sanction.
Amtrak asserts that the only effective sanction would be
dismissal with prejudice, as well as an award of the attorney’s
fees and costs incurred by Amtrak in preparing for the cancelled
depositions and litigating this motion. See Mot. at 1.
Plaintiffs argue that dismissal is not warranted because lesser
sanctions would mitigate any prejudice to Amtrak, and that an
award of costs and fees is not warranted because of the
inability of Guerra and Whitesides to pay. See Opp. at 4;
Flemming Decl. ¶ 15.
“District courts . . . possess broad discretion to impose
sanctions for discovery violations under Rule 37.” Parsi v.
Daioleslam, 778 F.3d 116, 125 (D.C. Cir. 2015). “The central
6
requirement of Rule 37 is that ‘any sanction must be just,’
which requires in cases involving severe sanctions that the
district court consider whether lesser sanctions would be more
appropriate for the particular violation.” Bonds v. District of
Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (quoting Ins. Corp.
v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 707 (1982)).
Rule 37 contains a non-exhaustive list of potential sanctions,
which include the establishment of adverse findings of fact,
striking pleadings, and dismissing a case or entering a default
judgment. See Fed. R. Civ. P. 37(b)(2)(A).
A. Dismissal Is Not Warranted.
Dismissal under Rule 37 is “‘an extremely harsh sanction.’”
Founding Church of Scientology v. Webster, 802 F.2d 1448, 1459
(D.C. Cir. 1986) (quoting Trakas v. Quality Brands, Inc., 759
F.2d 185, 186 (D.C. Cir. 1985)). It is “‘to be taken only after
unfruitful resort to lesser sanctions.’” Id. (quoting Jackson v.
Washington Monthly Co., 569 F.2d 119, 123 (D.C. Cir. 1977)); see
also Bonds, 93 F.3d at 808 (“Particularly in the context of
litigation-ending sanctions, we have insisted that ‘[s]ince our
system favors the disposition of cases on the merits, dismissal
is a sanction of last resort to be applied only after less dire
alternatives have been explored without success or would
obviously prove futile.’”) (quoting Shea v. Donohoe Const. Co.,
795 F.2d 1071, 1075 (D.C. Cir. 1986)) (alteration in original).
7
“[D]ismissal is warranted when (1) the other party has been
‘so prejudiced by the misconduct that it would be unfair to
require [the party] to proceed further in the case,’ (2) the
party’s misconduct has put ‘an intolerable burden’ on the court
by requiring the court to modify its own docket and operations
in order to accommodate the delay, or (3) the court finds it
necessary ‘to sanction conduct that is disrespectful to the
court and to deter similar misconduct in the future.’” Bradshaw
v. Vilsack, 286 F.R.D. 133, 140 (D.D.C. 2012) (quoting Webb v.
District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998))
(emphasis and alteration in original).1 In this case, an Order
1 The Court rejects Amtrak’s argument that these legal standards
are inapplicable. See Reply at 1–2 & n.1. Amtrak distinguishes
Shea v. Donohoe Const. Co., 795 F.2d 1071 (D.C. Cir. 1986)
because it dealt with attorney misconduct rather than party
misconduct. See Reply at 2. The D.C. Circuit applies Shea to
requests for dismissal due to a party’s misconduct as well. See,
e.g., Webb, 146 F.3d at 971 (relying on Shea in a case involving
discovery misconduct by a party). Amtrak’s argument that other
cases are inapplicable because they dealt with failures to
respond to discovery other than depositions is also incorrect.
The Court must examine similar factors before granting a
dismissal due to a party’s failure to appear for a deposition.
See, e.g., Founding Church of Scientology, 802 F.2d at 1458
(citing Shea in case involving Rule 37 sanctions for failure to
appear for a deposition, and noting that the Court should
consider, inter alia, “the deterrent effect a sanction will
have” and “the fundamental concern of avoiding the squandering
of scarce judicial resources”); Perez v. Berhanu, 583 F. Supp.
2d 87, 91 (D.D.C. 2008) (considering the three factors in a case
involving sanctions for, inter alia, failure to appear for a
deposition). Indeed, Rule 37(d) encompasses not only failures to
sit for depositions, but also failures to respond to
interrogatories or requests for inspection. See Fed. R. Civ. P.
37(d)(1)(A)(ii).
8
striking the declarations submitted by Guerra and Whitesides in
support of class certification would cure any prejudice to
Amtrak. The burden on the Court may in no way be characterized
as “intolerable.” Finally, although deterrence is an important
concern, it must also be proportional to the party’s action and
the striking of the declarations of Guerra and Whitesides,
combined with a partial award of expenses, will suffice.2
1. Prejudice
“In determining whether a party’s misconduct prejudices the
other party so severely as to make it unfair to require the
other party to proceed with the case, courts look to whether the
aggrieved party has cited specific facts demonstrating actual
prejudice, such as the loss of key witnesses.” Bradshaw, 286
F.R.D. at 140-41. This generally requires a showing that “the
errant party’s behavior ‘has severely hampered the other party’s
ability to present his case.’” Carazani v. Zegarra, 972 F. Supp.
2d 1, 12 (D.D.C. 2013) (quoting Webb, 146 F.3d at 971).
2 The legal authorities relied upon by Amtrak in support of its
request for dismissal may be swiftly distinguished. Gurara v.
District of Columbia, No. 2-cv-196, 2006 WL 2501574 (D.D.C. Mar.
6, 2006) addressed the standard for dismissal for failure to
prosecute under Federal Rule of Civil Procedure 41(b), which has
not been invoked in this Rule 37 motion. See id. at *1 n.1.
American Property Construction Co. v. Sprenger Lang Foundation,
274 F.R.D. 1 (D.D.C. 2011) recognized, as this Court recognizes,
that dismissal is an option when Rule 37 is violated. See id. at
12. That court, however, declined to impose dismissal just as
this Court does. Id.
9
Prejudice will not be found merely because a plaintiff’s
behavior caused the defendant “to waste time and money while
defending this action.” Davis v. D.C. Child & Family Servs.
Agency, 304 F.R.D. 51, 61-62 (D.D.C. 2014); see also Wash.
Metro. Area Transit Comm’n v. Reliable Limousine Serv., 776 F.3d
1, 5 (D.C. Cir. 2015) (“delay that merely prolongs litigation
‘is not a sufficient basis for establishing prejudice’”)
(quoting Berthelsen v. Kane, 907 F.2d 617, 621 (6th Cir. 1990)).
Amtrak did not explain any prejudice it may have suffered, and
the only prejudice that may be discerned from its pleadings is
that it was forced to expend time and money preparing for
depositions that never took place. This is insufficient to
support dismissal. See Wash. Metro. Area Transit Comm’n, 776
F.3d at 5 (delay alone is not prejudice); Davis, 304 F.R.D. at
61-62 (delay and expenditure of money are not prejudice).
To be sure, Amtrak is clearly prejudiced by its inability to
examine Guerra and Whitesides regarding the facts they proffered
in their declarations in support of the plaintiffs’ motion for
class certification. Cf. Reply at 4 (noting that “Amtrak went to
great lengths to determine who it would depose based on the
declarants’ specific personal allegations and their purported
knowledge of facts to support Plaintiffs’ class-based
allegations”). The Court does not doubt that the inability to
cross-examine a witness regarding a material fact within that
10
witness’s personal knowledge could prejudice a party. Here,
however, any prejudice arising from Amtrak’s inability to
examine Guerra and Whitesides may be fully cured by striking the
declarations submitted by Guerra and Whitesides. Accordingly,
this is not a case where discovery-related misconduct
irrevocably damages a party’s ability to prove its case. See,
e.g., Embassy of Fed. Republic of Nigeria v. Ugwuonye, 292
F.R.D. 53, 58 (D.D.C. 2013) (default judgment for failure
properly to answer interrogatories and produce documents was
appropriate because the plaintiff was unable to obtain
information vital to presenting its case and opposing a
counterclaim); Berhanu, 583 F. Supp. 2d at 91 (defendants’
refusal to participate at all in discovery caused prejudice
because “[p]laintiffs are unable to present their case for a
merits resolution without any discovery from defendants”). For
that reason, dismissal is not necessary to cure the prejudice to
Amtrak; a lesser sanction will make Amtrak whole.
2. Burden on the Court
The Court may also order dismissal when “the delay or
misconduct would require the court to expend considerable
judicial resources in the future in addition to those it has
already wasted, thereby inconveniencing many other innocent
litigants in the presentation of their cases.” Shea, 795 F.2d at
1075–76 (emphasis in original); see also Bradshaw, 286 F.R.D. at
11
140 (dismissal may be appropriate when the burden placed on the
Court is “‘intolerable’”) (quoting Webb, 146 F.3d at 971).
“District courts have substantial discretion in determining
whether it would be overly burdensome to take remedial action
less drastic than outright dismissal.” Bradshaw, 286 F.R.D. at
141. Amtrak offers no argument on this point, and the Court
perceives only a minimal burden.
3. Deterrence
The Court may also resort to dismissal when necessary for its
deterrent value. “A discovery sanction imposed for its deterrent
effect ‘must be calibrated to the gravity of the misconduct,’
and courts should avoid ‘pointless exactions of retribution.’”
Id. at 142 (quoting Bonds, 93 F.3d at 808) (alterations
omitted). Deterrence may support a case-dispositive sanction
where, for example, noncompliance with discovery was a strategic
decision. See Founding Church of Scientology, 802 F.2d at 1458
(upholding dismissal as sanction for failure of leader of a
plaintiff-organization to appear for a deposition based in part
upon “substantial evidence tha[t] the arrangement by which
Hubbard could communicate with the Church only at his initiative
was in fact designed to shield Hubbard from legal process”).
Amtrak asserts that the deterrent value of lesser sanctions
would be insufficient because “if Guerra and Whitesides are not
dismissed, it essentially allows Plaintiffs to pick and choose
12
which declarants should be deposed, depending on the strength
and veracity of their claims.” Reply at 4. This overstates the
misconduct that is actually at issue. No evidence has been
proffered to suggest that plaintiffs’ counsel or any other
plaintiff was involved in the decisions of Guerra and Whitesides
not to appear. A different result might be warranted if the
record permitted the Court to infer that the failure to appear
was due not to the reasons given, but to a strategic decision.
That is not to approve of either plaintiff’s actions. There
were ways to address Mr. Guerra’s concern without violating his
duty to appear for a properly noticed deposition. Had he
expressed concerns in advance, his counsel could have sought to
reach an agreement with Amtrak regarding additional protections,
moved for a protective order, or otherwise assuaged his
concerns. Although Mr. Whitesides’s first failure to appear is
eminently understandable—he suffered a death in the family the
evening before his deposition was scheduled and promptly
notified his lawyer—his second failure to appear is unexplained.
Mr. Guerra’s failure to appear and Mr. Whitesides’s second
failure to appear warrant a sanction to deter similar conduct in
the future. Consistent with the Court’s duty to “consider
whether lesser sanctions would be more appropriate for the
particular violation,” Bonds, 93 F.3d at 808, the Court
concludes that deterrence is served by: (1) striking the
13
declarations of Guerra and Whitesides; and (2) a partial award
of expenses, as discussed below.
B. The Court Will Award Some Expenses.
Rule 37 requires the Court to order “the party failing to act,
the attorney advising that party, or both 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)(3). Plaintiffs bear the burden of proving that their
failure was “substantially justified” or that circumstances
render an award “unjust.” See Novak v. Wolpoff & Abramson LLP,
536 F.3d 175, 178 (2d Cir. 2008). Plaintiffs argue that an award
of expenses would be unjust because “[n]either Guerra nor
Whitesides have the personal financial resources to pay.” Opp.
at 4; see also Flemming Decl. ¶ 15 (“both Mr. Guerra and Mr.
Whitesides have limited financial means and would be unable, or
it would be a hardship for them, to pay Amtrak’s attorneys’ fees
or costs”). They therefore suggest an award of only the costs
attributable to the court-reporter cancellation fees. See Opp.
at 4. Amtrak subsequently advised the Court that those fees have
been waived. See Reply at 4.3
3 As a preliminary matter, the Court finds that Mr. Whitesides’s
failure to appear on May 2, 2012 was substantially justified.
Mr. Whitesides suffered a death in the family the evening prior
to the day of his deposition and promptly notified his counsel
14
The Court begins with the proposition that “[a] flat per se
policy against the imposition of sanctions under . . . Rule 37
upon any party who is financially indigent does not accord with
the purposes of that rule and would open the door to many
possible abuses.” Bosworth v. Record Data of Md., Inc., 102
F.R.D. 518, 521 (D. Md. 1984). Such a holding would grant a
party carte blanche to abuse the discovery process. Nonetheless,
a party’s inability to pay a sanction is a factor that the Court
may consider. See id. (“[T]here may well be situations in which
financial indigency will tilt against the imposition of Rule 37
sanctions.”); Marez v. Chilton, No. 06-05028, 2007 WL 2947471,
at *1 (N.D. Cal. Oct. 9, 2007) (monetary sanction not warranted
where a plaintiff’s “Application to Proceed In Forma Pauperis
suggests that she is not able to pay sanctions in any amount.”).
In this case, declining to award any expenses would leave
largely unpunished the unacceptable behavior of two plaintiffs
who voluntarily invoked this Court’s authority by joining this
lawsuit. Striking their declarations will cure any prejudice to
Amtrak, but carries a relatively minimal deterrent value as
there remain 100 other declarations in support of class
certification. Accordingly, the Court concludes that a monetary
who promptly notified Amtrak’s counsel. The Court declines to
penalize Mr. Whitesides for such reasonable behavior and
therefore looks only to Mr. Guerra’s June 7 failure to appear
and Mr. Whitesides’s May 23 failure to appear.
15
sanction is appropriate to deter future discovery violations—
both by Guerra and Whitesides and by others.
The Court does not have an appropriate record on which to
decide precisely what monetary sanction to award, however.
Plaintiffs assert that Guerra and Whitesides “would be unable,
or it would be a hardship for them, to pay Amtrak’s attorneys’
fees or costs.” Flemming Decl. ¶ 15. This vague disjunctive
statement is not sufficiently detailed to assist the Court in
balancing the need to fashion a sanction that would provide
appropriate deterrence against the need to avoid being unjustly
punitive. Amtrak asks for all costs and attorneys’ fees
regarding the deposition preparation and litigation of this
motion, but did not provide an accounting of these fees and
costs. Accordingly, the Court holds only that Rule 37(d)
requires that the Court award at a minimum the non-attorney-fee
costs attributable directly to the May 23 and June 7
depositions. After the parties submit pleadings with
sufficiently detailed information to permit the Court to fashion
an award that is both reasonable and proportional, the Court
will decide whether this award is sufficient, or whether an
award of some portion of the attorneys’ fees attributable to the
May 23 and June 7 depositions and the litigation of this motion
is also warranted.
16
III. Conclusion
For the foregoing reasons, the Court GRANTS IN PART AND DENIES
IN PART Amtrak’s motion for exclusion of plaintiffs Guerra and
Whitesides and for related costs. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
May 4, 2015
17