Love v. Virginia Port Authority

Memorandum in Support re MOTION to Compel Deposition of Plaintiff

E.D. Va.April 7, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division JODIE LOVE Plaintiff v. VIRGINIA PORT AUTHORITY, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-CV-160 Memorandum In Support of Motion to Compel Deposition Pursuant to Rules 30 and 37 of the Federal Rules of Civil Procedure and Local Rule 30, Defendant Virginia Port Authority (“Defendant”) submits this memorandum in further support of its Motion to Compel Plaintiff’s Deposition. Background and Relevant Facts After numerous requests for deposition dates dating as early as December, 2018, Defendant has no choice but to seek the assistance of this Court to compel Plaintiff to cooperate with discovery by sitting for her deposition. Discussions between counsel in this case demonstrate the extent of Ms. Love’s refusal to engage in discovery. On November 28, 2017, Defendant made its first request for Ms. Love’s deposition dates, asking in writing for her availability during the weeks beginning February 12 th and February 19 th . Counsel for Plaintiff indicated in response that he needed a few additional days to determine his schedule. Defendant received no such response. Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 1 of 7 PageID# 618 2 After additional verbal discussions, Defendant again requested Ms. Love’s available deposition dates in writing on February 13, 2018. This time, Defendant requested Ms. Love’s avoid dates during the weeks beginning March 12, March 19, and March 26. Yet again, no response was received, so undersigned counsel again requested her availability for those dates in writing on February 27, 2018. No response was received. After the parties’ unsuccessful judicial settlement conference on March 8, 2018, undersigned counsel again followed up regarding Ms. Love’s deposition availability, this time requesting her availability on April 5 th or April 6 th . Counsel for Plaintiff indicated that he would be moving to withdraw as counsel, but did not provide a response in regard to depositions. To address Plaintiff’s refusal to engage in discovery (including written discovery, responses to which were at that point many months overdue), Defendant served a deficiency letter on March 20, 2018. Therein, Defendant again asked for Ms. Love’s deposition availability on April 5. Counsel for Plaintiff responded on March 28, 2018, stating that he contacted Ms. Love, but had not yet heard back. To provide additional flexibility, undersigned counsel provided additional available dates: April 9-13. Counsel for Plaintiff responded that he was available on April 9-11, and that he had reached out to Ms. Love regarding those dates. Undersigned counsel indicated that if Ms. Love did not respond by March 30, 2018, Defendant would notice the deposition. Counsel for Plaintiff requested that Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 2 of 7 PageID# 619 3 Defendant notice the deposition for April 11 th , 16 th , or 17 th , and undersigned counsel agreed. After giving Ms. Love even more time to consider her availability on the offered dates, Defendant propounded a Notice of Deposition on April 3, 2018, scheduling Ms. Love’s deposition for April 11 th , 2018. Ex. A. Given that the close of discovery in this case falls on April 30, 2018, Defendant simply had no choice but to proceed. After Defendant served its Notice of Deposition, counsel for Plaintiff indicated that Ms. Love refuses to appear on April 11 th , allegedly because her brother is having surgery. Counsel for Plaintiff proposed rescheduling the deposition to April 13 th , though he clarified that he was unsure if Ms. Love was available on that date. In response, undersigned counsel indicated that April 13 th was possible, but only if Ms. Love confirmed her availability. During the afternoon of Friday, April 6, 2018, Plaintiff, through her counsel, responded. However, she did not provide her availability on April 13 th , but instead – and for the first time – insisted on an unspecified weekend deposition date because “she does not want to take any more time off of work.” She also stated that “evenings are ok but she says she has to look at her schedule next week when she is back at work.” 1 At no previous point in this litigation has Ms. Love expressed that either a weekend or night deposition was her preference. And in fact, Ms. Love still does not state that such scheduling is a necessity, but instead merely her preference (expressed at 1 The absurdity of Ms. Love’s request is evident. Ms. Love insists that counsel for the parties invade and reschedule their weekends to accommodate her scheduling preference, yet she appears unwilling to use a small portion of her own weekend to check her schedule for evening depositions. Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 3 of 7 PageID# 620 4 the last possible moment). Moreover, Ms. Love has still refused to respond to Defendant’s reasonable request for her availability for deposition on April 13 th . In response to Ms. Love’s obstructionist tactics and refusal to engage in the discovery process, Defendant hereby requests this Court’s assistance in compelling Ms. Love’s appearance at her deposition on April 11 th . In the alternative, if Ms. Love presents proof that she is unavailable on April 11 th , Defendant is amenable to conducting her deposition on April 12 th or 13 th . Defendant certainly appreciates the legitimacy of familial obligations; however, Ms. Love’s conduct to date casts doubt on her proffered reason. Argument 1. Defendant’s Motion to Compel Ms. Love’s Deposition Should Be Granted. Defendant is entitled to depose Plaintiff. The Federal Rules of Civil Procedure clearly provide that “[a] party may, by oral question, depose any person, including a party, without leave of court, except as provided in Rule 30(a)(2).” However, much like her failure to timely respond to written discovery, Plaintiff has refused to cooperate in setting or appearing for her deposition. Indeed, Defendant has been attempting since November, 2017 – for over four months – to find a mutually-acceptable date on which to conduct Ms. Love’s deposition. Yet Ms. Love has responded to Defendant’s flexibility and understanding with little more than obstruction and silence. And although Ms. Love has proffered an excuse for Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 4 of 7 PageID# 621 5 refusing to appear at her deposition on April 11 th , she has not explained how that excuse (her brother’s surgery) prevents her appearance. In addition, Ms. Love’s last-minute request for a weekend or nighttime deposition is unreasonable. Defendant has been working to schedule Ms. Love’s deposition for over four months, and in response to those efforts, Ms. Love waited until the last possible minute to request an unspecified and disruptive weekend or evening deposition. At such late notice, such unusual arrangements are simply not possible. Rather, because the Federal Rules of Civil Procedure do not excuse Ms. Love from appearing for deposition, Defendant requests that this Court order Ms. Love to appear at her deposition on April 11, 2018. 2. Ms. Love Should Be Ordered to Pay Defendant’s Costs Incurred in Bring this Motion. Pursuant to Federal Rule 37, “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.” Fed. R. Civ. P. 37 (d)(1)(B) (emphasis added). The Court applies this rule even in cases involving pro se parties, 2 regardless of the party’s ability to pay the sanctions. See Hughes v. Research Triangle Institute, 1:11-CV-546, 2014 WL 4384078, *5 (M.D.N.C. Sept. 3, 2014) (ordering pro se plaintiff to pay defendant’s attorneys’ fees and costs incurred in making its motion to compel despite plaintiff’s claim that she was financially unable to do so). There is no 2 Although Ms. Love is presently represented by counsel, an award of costs and fees would be appropriate even if this Court grants Mr. Klein’s Motion to Withdraw as Counsel. Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 5 of 7 PageID# 622 6 justification for Plaintiff refusing to provide her available deposition dates, and then refusing to appear for her deposition. Defendant requests the Court enter sanctions against Plaintiff requiring her to pay Defendant’s costs, including reasonable attorneys’ fees and court reporter fees, and for other sanctions the Court deems appropriate. Conclusion Plaintiff refused to provide her available dates – despite over four months of efforts by Defendant – and she now refuses to appear for her deposition, which is currently noticed for April 11, 2018. Defendant asks the Court to enter an Order compelling Plaintiff to appear for her deposition on that date, and awarding Defendant its reasonable costs and attorneys’ fees incurred in bringing this motion, and entering all other sanctions the Court deems just. Dated: April 7, 2018 Respectfully Submitted, Virginia Port Authority By /s/ J. Clay Rollins_____ Jimmy F. Robinson, Jr., Esquire Virginia State Bar Number 43622 jimmy.robinson@ogletreedeakins.com J. Clay Rollins, Esquire Virginia State Bar Number 84382 clay.rollins@ogletreedeakins.com Counsel for Defendant OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 901 East Byrd Street, Suite 1300 Riverfront Plaza, West Tower Richmond, VA 23219 Tel.: (804) 663-2336 Fax: (855) 843-1809 Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 6 of 7 PageID# 623 7 Certificate of Service I hereby certify that on this 7 th day of April, 2018, I electronically filed the foregoing with the clerk of the court using the CM/ECF system which will send notification of such filing to counsel for Plaintiff: Gregory William Klein, Esquire Virginia State Bar No.: 73110 Taylor & Walker, P.C. 555 Main Street, Suite 1300 Norfolk, VA 23510 Voice: (757) 625-7300 Fax: (757) 625-1504 gklein@taylorwalkerlaw.com Counsel for Plaintiff Virginia Port Authority By /s/ J. Clay Rollins_____ Jimmy F. Robinson, Jr., Esquire Virginia State Bar Number 43622 jimmy.robinson@ogletreedeakins.com J. Clay Rollins, Esquire Virginia State Bar Number 84382 clay.rollins@ogletreedeakins.com Counsel for Defendant OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 901 East Byrd Street, Suite 1300 Riverfront Plaza, West Tower Richmond, VA 23219 Tel.: (804) 663-2336 Fax: (855) 843-1809 33646070.2 Case 2:16-cv-00160-AWA-RJK Document 60 Filed 04/07/18 Page 7 of 7 PageID# 624