Oldershaw v. Davita Healthcare Partners, Inc.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SANCTIONS

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE.

         This 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 for Sanctions.

         BACKGROUND

         Plaintiffs 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.

         The 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].

         On June 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].

         Jamie 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].

         LEGAL STANDARD

         I. Depositions under Rule 30 of the Federal Rules of Civil Procedure

         Rule 30 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. Colo. 1993)).

         The 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.

         II. Rule 37(d) of the Federal Rules of Civil Procedure

         Rule 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) ...