Free Order on Motion for Sanctions - District Court of California - California

Case 3:07-cv-02301-JLS-POR

Document 46

Filed 09/10/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. RALPHS GROCERY COMPANY dba FOOD 4 LESS #780; CYPRESS CREEK CO., LP dba PTC INVESTMENTS COMPANY, Defendants. On July 3, 2008, Defendant Ralphs Grocery Company filed a motion for sanctions under Rule 37(d) of the Federal Rules of Civil Procedure because Plaintiff failed to appear for his deposition noticed for June 25, 2008. Defendant contends Plaintiff was aware his deposition was noticed for June 25, 2008. On May 5, 2006, Defendant claims it served Plaintiff's counsel with a deposition notice. Two days later, Defendant states Plaintiff's counesl confirmed receipt of the deposition notice by objecting to it as premature. On June 4, 2008, Defendant asserts it agreed to an extension of time for Plaintiff to respond to its written discovery, provided Defendant receive Plaintiff's responses before his scheduled deposition. Thus, Defendant argues Plaintiff acknowledged on several occasions he had notice of his June 25, 2008 deposition. Plaintiff's counsel and Plaintiff contend they never received a deposition notice. Plaintiff argues Defendant mistakenly served two identical copies of Interrogatories on May 5, 2008, rather than one set of Interrogatories and one deposition notice. -1A.J. OLIVER, Plaintiff, ORDER DENYING DEFENDANT'S MOTION FOR SANCTIONS [Document No. 31] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Civil No. 07cv2301-JLS (POR)

07cv2301

Case 3:07-cv-02301-JLS-POR

Document 46

Filed 09/10/2008

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After reviewing the briefing on Defendant's motion, it is obvious to the Court that no meaningful meet and confer occurred in this matter. It is apparent from the pleadings and the Court's own experience with counsel that cooperation and professionalism, required by Local Rule 83.4, has disintegrated. Adherence to the Code of Conduct prescribed in Local Rule 83.4 could alleviate the stress and distress counsel suffer from this case. It is apparent to the Court Plaintiff and Plaintiff's counsel did not receive notice of the deposition set for June 25, 2008. After reviewing the parties' supporting declarations, there is no evidence the deposition date was mentioned in the parties' communication. The Court's review of the deposition notice itself gives cause to believe Plaintiff and Plaintiff's counsel did not receive notice. The notice sets the deposition for Irvine, an inordinate distance from the Plaintiff's home (Imperial Beach), considering Plaintiff is disabled and does not drive. It is unfortunate Defendant's counsel felt it necessary to move the Court for sanctions rather than contact the Court for a telephonic discovery conference. It is unfortunate Defendant's counsel expended a significant number of hours preparing an unnecessary motion for sanctions. Plaintiff has shown substantial justification for his non-appearance. Based thereon, IT IS HEREBY ORDERED: 1. 2. Defendant's motions for sanctions is DENIED. Plaintiff's deposition shall go forward within 20 days, in San Diego, at a time and

place mutually convenient to both sides. 3. The Court directs counsel to Local Rule 83.4, Professionalism, and the revised San

Diego County Bar Association Attorney Code of Conduct, 2008, available from the San Diego County Bar Association and chambers. Counsel shall read them and comply with them. IT IS SO ORDERED. DATED: September 10, 2008

LOUISA S PORTER United States Magistrate Judge The Honorable Janis L. Sammartino all parties -207cv2301