The opinion of the court was delivered by: Magistrate Judge Boyd N. Boland
This matter is before me on the Defendants' Motion for Sanctions [Doc. # 59, filed 12/29/05] (the "Motion for Sanctions"). The plaintiff filed Plaintiff's Motion to Deny Sanctions [Doc. # 69, filed 2/1/06] (the "Response"), which I have construed as his response to the Motion for Sanctions. The Motion for Sanctions requests an order dismissing the case due to the plaintiff's failure to comply with my Order [Doc. # 44, filed 11/7/05], which compelled the plaintiff to appear for his deposition at the offices of Brooks & Schluter, LLP, in Denver, Colorado. The Motion for Sanctions is DENIED, as specified below.
The plaintiff filed a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on April 23, 2004. That motion was granted on April 29, 2004. Also on April 29, 2004, the plaintiff's Complaint was accepted for filing. The Complaint alleges that officers of the Trinidad police department violated the plaintiff's constitutional rights in connection with an arrest occurring on April 21, 2002.
The plaintiff resides in Trinidad, Colorado. That fact notwithstanding, he selected the United States District Court as the forum for his suit. This court is located in Denver, Colorado. The plaintiff chose not to bring his suit in the state district court in Las Animas County, Colorado, which sits in Trinidad.
On October 10, 2005, defendants Las Animas County and the Las Animas County Sheriff's Department filed a Motion to Compel Plaintiff's Deposition [Doc. # 39] (the "Motion to Compel"). The Motion to Compel recited that on September 23, 2005, the defendants sent a letter to the plaintiff requesting a date for his deposition. The letter indicated the defendants' intention to take the deposition in Denver, Colorado, where their counsel are located. The plaintiff responded, in relevant part:
While to the best of my knowledge, there is nothing on any of your proposed dates (October 6, 7, 14, 2005) that presents a conflict, I inform you now, on several grounds, not the least of which is the unreasonableness of "requesting" that I travel great distances to be deposed at your request, that I will not, on any date, be traveling beyond the statutory boundaries of Trinidad, let alone some 200 miles one-way, to Denver, to attend your requested Deposition of me.
If, despite the availability of taking this Deposition by telephone, per "Rule 29", (A stipulation I here and now, in writing, make) you insist on a "sit-down" Deposition, then you, or some associate will need to make arrangements for a suitable (And neutral) meeting place within the statutory boundaries of Trinidad, where, on a mutually agreeable date & time, you, your deposition crew, and any other authorized person(s) may conduct the proposed Discovery.
Motion to Compel at Exh.4.
Communication between the plaintiff and the defendants is complicated by the fact that the plaintiff does not have a telephone nor, apparently, a regular address where overnight deliveries can be made. The sole address provided by the plaintiff is a Post Office Box, thus necessitating that all communications be by United States mail. I concluded from these facts, and from the tenor of the plaintiff's letter, that conferring about such things as the city where the deposition may be taken and what constitutes a sufficiently "neutral" location for the deposition would be time consuming, difficult, and could lead to gamesmanship. Consequently, I set the Motion to Compel for hearing on November 7, 2005, noting that "[i]t is apparent from the motions that the parties are experiencing sufficiently serious difficulties in connection with discovery matters as to require a hearing." Order [Doc. # 41, filed 10/14/05]. I also ordered the parties to have calendars available "to set discovery dates." Id.
The plaintiff did not respond to the Motion to Compel. In addition, he failed to appear at the hearing on November 7, 2005. Nor did the plaintiff file any motion concerning the November 7 hearing, such as a request to reschedule it, to attend by telephone, or the like. Although I was prepared to consider evidence from the plaintiff concerning the possible undue burden OF requiring him to attend a deposition in Denver, he failed to respond to the Motion to Compel either in writing or orally at the hearing.*fn1 Consequently, I granted the Motion to Compel and ordered the plaintiff to appear for his deposition at the offices of defendants' counsel on November 30, 2005. Order [Doc. # 44, filed 11/7/05].
The plaintiff objected to my order of November 7. The district judge overruled the objections and affirmed my order. Order [Doc. # 52, filed 11/30/05]. In doing so, the district judge noted that the plaintiff chose the federal court forum, even though he could have brought his action in the state district court in Trinidad. The district judge also observed that the plaintiff had failed to produce any evidence of undue burden, other than the fact that the plaintiff would have to travel approximately 400 miles round trip. Id. at pp.4-5. The defendants already had attempted to mitigate that burden by offering to begin the plaintiff's deposition at 1:00 p.m., "giving you time to drive to Denver in the morning." Motion to Compel at Exh.1. Finally, the district judge rejected the plaintiff's argument that his deposition should be taken by telephone, noting:
Particularly where the deponent is a party to the case, the opportunity to assess the deponent's demeanor is an important component of the deposition, and the party noticing the deposition is within its right to demand that the deposition occur in-person.
Id. at p.5 n.5. I would note, in addition, that another reason the defendants may have refused to proceed by a telephonic deposition is the difficulty generally encountered when attempting to examine a deponent over the telephone concerning a document.
The plaintiff's Response does nothing to justify his failure to comply with my November 7 order, and ...