United States District Court, D. Colorado
KELSEY OLDERSHAW, ELINA NAVARRO, JANE STANT, and JAYMIE STEVENS, individually and on behalf of others similarly situated, Plaintiffs,
DAVITA HEALTHCARE PARTNERS, INC., and TOTAL RENAL CARE INC., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
Y. WANG UNITED STATES MAGISTRATE JUDGE.
matter comes before the court on Defendants' Motion for
Sanctions, [#194, filed April 20, 2018], which was referred
to this Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1), the Order Referring Case dated November 8, 2016
[#81], and the memorandum dated April 20, 2018 [#195]. This
court has considered the Parties' submissions, the entire
docket, and the applicable case law, and hereby
GRANTS IN PART and DENIES IN PART the Motion
Kelsey Oldershaw (“Ms. Oldershaw”), Elina Navarro
(“Ms. Navarro”), Jane Stant (“Ms.
Stant”), and Jaymie Stevens (“Ms. Stevens”)
(collectively, “Plaintiffs”) initiated this
lawsuit individually and on behalf of others similarly
situated to allege wage violations by Defendants Davita
Healthcare Partners, Inc. and Total Renal Care Inc.
(collectively, “Defendants”). [#33]. This court
has discussed the background of this case in detail in
previous orders and will not repeat itself here other than to
describe the factual circumstances most relevant to the
issues at hand.
case was originally assigned to the Honorable John L. Kane,
who entered the first Scheduling Order on January 26, 2016.
See [#15]. Judge Kane entered a number of orders
amending the schedule, see, e.g., [#42, #53], before
recusing on November 7, 2016. [#78, #79]. The case was then
reassigned to the Honorable Marcia S. Krieger, who referred
the matter to the undersigned Magistrate Judge for certain
pretrial matters. [#81]. Following the referral, this court
held a Status Conference and, again, amended the pretrial
deadlines. See [#91]. Discovery progressed, albeit
with a number of disputes arising between the Parties that
necessitated court intervention and extensions of time.
See, e.g., [#112, #118, #121, #124].
1, 2017, Chief Judge Krieger issued a Supplemental Opinion
and Order with Regard to Bifurcation of Claims, in which she
distinguished between a collective action arising under the
Fair Labor Standards Act (“FLSA”) and a class
action for claims under the Colorado Wage Claim Act
(“CWCA”) brought pursuant to Rule 23 of the
Federal Rules of Civil Procedure. [#130]. As stated in the
Supplemental Opinion and Order, “the FLSA
‘collective action' acts much like a civil suit
with many plaintiffs who pursue their own claims.”
[Id. at 5]. Opting in is an act of consent to
identify the employee's individual claim. [Id.
at 7]. In an FLSA collective action, every plaintiff,
original or “opt-in, ” is free to pursue his or
her individual claim. [Id. at 8]. On July 13, 2017,
this court held a Supplemental Scheduling Conference, [#136,
#137], and, in light of the Supplemental Opinion and Order,
entered a Supplemental Scheduling Order that set a total
number of hours for depositions of all opt-in plaintiffs, to
be allocated up to a total of four (4) hours for any single
opt-in plaintiff. [#137 at 6].
Lubken (“Ms. Lubken”) is an opt-in plaintiff who
is represented by the Ramos Law Firm. See [#194 at
1]. In response to Defendants' request, Plaintiffs'
counsel provided Ms. Lubken's address in Queen Creek,
Arizona, and identified February 16, 2018 at 1:30 p.m. as the
acceptable date and time for her deposition. [#194-1]. On
February 5, 2018, Defendants served a Notice of Deposition
for Ms. Lubken's deposition to take place in Phoenix,
Arizona at the date and time provided by Plaintiffs'
counsel. [#194-2]. Defense counsel thereafter traveled to
Phoenix to take Ms. Lubken's deposition. [#194 at 2]. At
approximately 1:00 p.m. on February 16, Plaintiffs'
counsel became aware that Ms. Lubken would not appear for her
deposition, but counsel did not send an email to opposing
counsel until 1:26 p.m., at which time counsel for Plaintiffs
informed counsel for Defendants that Ms. Lubken had
mistakenly believed that her deposition was scheduled for
March, and would not be appearing for the time scheduled in
the Notice. [#194-3 at 1]. The Parties rescheduled Ms.
Lubken's deposition for March 22, 2018, at which time Ms.
Lubken appeared and provided testimony. [#194 at 2 n.1].
Depositions under Rule 30 of the Federal Rules of Civil
contemplates that subject to some exceptions a party may, by
oral questions, depose any person, including a party.
Fed.R.Civ.P. 30(a)(1). Notice is required, and must state the
time and place of the deposition, and, if known, the
deponent's name and address. Fed.R.Civ.P. 30(b)(1). A
live deposition, i.e., one where the deponent and parties
appear in one place together, is the presumptive method of
deposition. While other Districts within the Tenth Circuit
hold that, as a general rule, plaintiffs must make themselves
available for deposition in the district in which they bring
suit, see Shockey v. Huhtamaki, Inc., 280 F.R.D.
598, 600 (D. Kan. 2012), this District follows the general
principle that “[i]n the absence of exceptional or
unusual circumstances, when a deponent resides at a
substantial distance from the deposing party's residence,
the deposing party should be required to take the deposition
at a location in the vicinity in which the deponent resides,
even if the deponent is a party.” Delorey v.
P&B Transp. Inc., No. 07-cv-01916-WYD-KMT, 2008 WL
2751342, at *1 (D. Colo. July 11, 2008) (citing Metrex
Research Corp. v. United States, 151 F.R.D. 122, 125 (D.
parties may stipulate, or the court upon motion may order,
that a deposition be taken by telephone or other remote
means. Fed.R.Civ.P. 30(b)(4). But there is no requirement,
without stipulation or court order, that parties use
telephonic or remote means for a deposition. In this case,
there was no stipulation or order for the deposition to occur
by remote means, nor was there an order directing for the
deposition to occur remotely.
Rule 37(d) of the Federal Rules of Civil Procedure
37(d) provides that “[t]he court where the action is
pending may, on motion, 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)(i). Sanctions may include any orders listed in
Rule 37(b)(2)(A)(i)-(vi). Fed.R.Civ.P. 37(d)(3). Instead of,
or in addition to, such sanctions, the court must require 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. Id. Courts in this District
interpreting the Rule have found that it is mandatory in
nature if the court finds that a party's failure was not
substantially justified and that other circumstances do not
make an award of expenses unjust. See, e.g., Carbajal v.
Warner, No. 10-CV-02862-REB-KLM, 2014 WL 145305, at *3
(D. Colo. Jan. 14, 2014). See also Novak v. Wolpoff &
Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008)
(“[C]ourts and commentators alike have held that the
provision requires the award of expenses unless the
disobedient party meets that burden[.]”) (quotations
omitted). Cf. Doporto v. Chan Kim, No. CV 10-0145
JCH/WPL, 2012 WL 13076187, at *2 (D.N.M. Oct. 4, 2012)
(observing that “Rule 37(d) ...