Opinion
Case No. 2:09-cv-01016-GMN-GWF
10-02-2015
STEELMAN PARTNERS, a Nevada limited liability partnership, Plaintiff, v. SANYA GAOSHENG INVESTMENT COMPANY, LTD., a Hong Kong corporation, Defendants.
ORDER
This matter is before the Court on Plaintiff's Motion to Compel and for Sanctions (#80), filed on August 24, 2015. No response has been filed, and the time to do so has passed.
Plaintiff scheduled a Fed R. Civ. P. 30(b)(6) deposition for Defendant on April 24, 2015. Defendant did not appear. Defendant did not object to the scheduling of the deposition, and did not offer any advance warning that they would not be appearing. Plaintiff now moves the Court for an order compelling Defendant to attend the 30(b)(6) deposition and to award Plaintiff costs and fees associated with this Motion and the cancelled deposition.
Fed. R. Civ. P. 37(d) allows the Court to issue sanctions to a party that fails to attend a properly notice deposition. Great American Ins. Co. of New York v. Vegas Const. Co., Inc., No. 2:06-cv-00911-BES-PAL, 251 F.R.D. 534, 542 (D. Nev. 2008). The party seeking sanctions under Rule 37(d) is required to proceed with the deposition and make a record of the party's failure to appear. Koninklike Philips Electronics N.V. v. KXD Technology, Inc., 2:05-cv-01532-RLH-GWF, 2007 WL 3101248 at *18. "The severity of the sanction to be imposed, however, depends on the extent to which the failure to appear was willful or in bad faith." Id., see also Advisory Committee Notes to Rule 37(d). In addition to any sanctions imposed, the moving party may seek attorney's fees and reasonable expenses. Fed. R. Civ. P. 37(d)(3).
The Defendant's failure to appear was a willful and intentional failure. Upon receipt of the Notice of Deposition (#80-3), Defendant gave his counsel specific instructions not to contact Plaintiff's counsel until the date for the deposition had passed. When Defendant's counsel finally spoke to Plaintiff's counsel, they informed Plaintiff that Defendant had no intention of appearing for the deposition and does not intend to appear for a deposition in the United States. Motion to Compel, (#80), p. 4. Sanctions are appropriate for a willful and intentional failure to appear for a properly noticed deposition. Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Compel and for Sanctions (#80) is granted as follows:
1. Defendant shall appear for a deposition no later than December 2, 2015. The Parties shall confer on a date for the deposition.
2. Plaintiff is awarded its costs and attorneys' fees incurred in connection with this motion and the April 24, 2015 deposition. Plaintiff shall submit its brief in support of the amount of fees and costs by October 16, 2015. Should the Defendant wish to respond, they must do so no later than November 2, 2015. Any Reply by the Plaintiff must be submitted by November 12, 2015.
DATED this 2nd day of October, 2015.
/s/_________
GEORGE FOLEY, JR.
United States Magistrate Judge