United States District Court, D. Colorado
STATE OF JAMES STRONG, JR., LANHISHA RICHMOND, individually and as natural parent of minors J.S. and T.S.R., MARCUS STRONG, and HOWARD MITCHELL, JR., Plaintiffs,
CITY OF NORTHGLENN, COLORADO, CITY OF THORNTON, COLORADO, CITY OF WESTMINSTER, COLORADO, NICHOLAS WILSON, JASON SCHLENKER, and ADAM NIELSEN, Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge
17, 2018, pursuant to this Court's Practice Standard
I.C., defense counsel emailed the Court (and copied to
Plaintiffs' counsel) requesting a discovery conference to
discuss Plaintiff Marcus Strong's failure to appear for his
deposition on January 31, 2018. The Court responded by email
seeking counsels' availability for the following week,
but received no response from Plaintiffs' counsel; thus,
the Court set a telephone conference for May 24, 2018
directing counsel to teleconference together first before
calling the Court. Order, ECF No. 66. Despite notification by
email and order, Plaintiffs' counsel did not appear for
the May 24, 2018 conference. Minutes, ECF No. 68. That same
day, Defendants filed the present motion for sanctions
pursuant to Fed.R.Civ.P. 37(d) for Marcus Strong's
failure to appear at his deposition. ECF No. 67. Then, on
June 4, 2018, this Court issued an order for Plaintiffs to
show cause why the motion should not be granted and fees
awarded against the Plaintiffs for their failure to appear at
the May 24, 2018 conference. ECF No. 75.
14, 2018, Plaintiffs filed a response to the order to show
cause explaining that counsel “missed [defense
counsel's] call” just prior to the conference and
attempted to call defense counsel, but was told defense
counsel was out of the office until the following week. Resp.
¶¶ 6, 7, ECF No. 80. Plaintiffs asked that the
Court discharge the show cause order as counsel “made
every attempt to attend the schedule[d] telephone
conference.” Id. ¶ 9. While the Court
believes that Plaintiffs' counsel could (and should) have
called the Court directly when he was unable to reach defense
counsel, the Court will nonetheless
discharge the order to show cause for
Plaintiffs' failure to appear at the discovery
Plaintiffs mentioned nothing about the motion for sanctions
in their response, nor filed a separate response brief
opposing the motion for sanctions within the time required by
D.C. Colo. LCivR 7.1(d). As such, the Court finds the motion
37(d)(1)(A)(i) authorizes a district court to impose
sanctions if a party fails to appear for his deposition after
being served with proper notice.” Smith v.
McKune, 345 Fed.Appx. 317, 318 n.1 (10th Cir. 2009).
“A motion for sanctions for failing to answer or
respond must include a certification that the movant has in
good faith conferred or attempted to confer with the party
failing to act in an effort to obtain the answer or response
without court action.” Fed.R.Civ.P. 37(d)(1)(B).
“Sanctions for failure to appear ‘may include any
of the orders listed in Rule 37(b)(2)(A)(i)-(vi),' which
includes dismissing the action in whole.”
McKune, 345 Fed.Appx. at 318 (citing Fed.R.Civ.P.
dismissal of an action with prejudice is a drastic sanction
that should be employed only as a last resort, it is
appropriate only in cases of willful misconduct.”
Id. (citing Davis v. Miller, 571 F.3d 1058,
1061 (10th Cir. 2009) and Ehrenhaus v. Reynolds, 965
F.2d 916, 920 (10th Cir.1992)) (internal quotation marks
omitted). Accordingly, before dismissing a case under Rule
37, a district court
should ordinarily consider a number of factors, including:
(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; ... (3) the
culpability of the litigant; (4) whether the court warned the
party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
Id. (citation omitted).
case, Defendant produced a copy of the December 17, 2017
Notice of Videotaped Deposition of Marcus Strong scheduled
for January 31, 2018 at defense counsel's office in
Denver, Colorado. Notice, ECF No. 67-1. According to
Defendant, its counsel conferred with Plaintiffs' counsel
following Marcus Strong's non-appearance through
“exchanges of emails” and “telephone
discussions, ” then tendered a proposed stipulation for
dismissal with prejudice. Mot. 2. Plaintiffs' counsel
objected to dismissal with prejudice and “would only
agree to a voluntary dismissal” if it was
“without prejudice.” Id. Defendant seeks
as sanctions the dismissal of Marcus Strong's claims with
prejudice, an award of attorney's fees incurred in filing
the motion and preparing for the deposition, and an award of
costs associated with canceling the deposition.
Court notes that, while the Plaintiffs have not filed a
response opposing the present motion, they have since filed a
motion for leave to file a Second Amended Complaint, which
identifies Marcus Strong as a “Plaintiff” in the
case caption and refers to him as participating in the events
that are the subject of the Plaintiffs' claims in this
case; however, the proposed pleading does not name Marcus
Strong in the “Parties” section of the Second
Amended Complaint, nor alleges a claim on his behalf, nor
identifies him as having suffered damages as a result of the
Defendants' alleged conduct. See ECF No. 72-1.
Plaintiffs also assert that, in seeking the proposed
amendments, they “have not added counts to the
complaint but removed several counts to help improve the
quality of and expediency of the case.” Reply ¶ 9,
ECF No. 79. Thus, while Plaintiffs have not
specifically attempted to remove Marcus Strong as a
Plaintiff in this case, it is apparent from the proposed
amendments that they seek to abandon his claims.
Compare ECF No. 72-1 with ECF No. 33
(alleging Count 8 on behalf of Marcus Strong).
Court finds that the proper sanction for Marcus Strong's
failure to attend his deposition and failure to make himself
available for a deposition thereafter is to dismiss his
claims in this case with prejudice. Marcus Strong's
refusal to participate in discovery substantially prejudices
the Defendant with respect to any claims he may allege.
Furthermore, there is no indication that his failure to
appear at the deposition was the fault of anyone other than
himself. Finally, perhaps knowing that the sanction would be
imposed, Plaintiffs appear to have abandoned Marcus
Strong's claims in this case.
addition, neither Marcus Strong nor his counsel have provided
the Court with any information that might mitigate their
responsibility for the fees and costs incurred as a result of
Marcus Strong's failure to attend his deposition.
Therefore, the Court will award the Defendant costs in the
amount of $350.00 (see ECF Nos. 67-2 and
67-3) and its reasonable attorney's fees for
preparing for the deposition and drafting the present motion.
Defendant shall file an affidavit in accordance with D.C.
Colo. LCivR 54.3 on or before June 29, 2018, and the
Plaintiffs may file a response challenging the reasonableness
of the fees within fourteen days after the affidavit is
this Court respectfully recommends that Defendants'
Motion for Sanctions Pursuant to Fed.R.Civ.P. 37(d)
[filed May 24, 2018; ECF No. 67] is
granted and that the District Court dismiss
Marcus Strong's claims with prejudice. In addition, the
Court orders an award of costs and attorney's fees as set
the Court discharges its Order to Show Cause