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Cullen v. Dabin Trucking, Inc.

United States District Court, M.D. Pennsylvania

December 21, 2016

JAMES P. CULLEN, III, et al., Plaintiffs
v.
DABIN TRUCKING, INC., et al., Defendants

          MEMORANDUM OPINION

          KAROLINE MEHALCHICK, United States Magistrate Judge

         I. Background

         This matter was initiated by Plaintiffs on January 21, 2015. After extending case management deadlines on more than one occasion, the deadline for discovery was set for June 15, 2016. During the course of this litigation, Defendant Phillip Saul failed to participate in any discovery, and indeed, despite being ordered to do so by this Court (Doc. 32), failed to appear at his deposition, scheduled for January 28, 2016. Based on his failure to appear for his deposition, Plaintiffs moved for sanctions (Doc. 40), wherein they seek (1) an order by this Court precluding Defendants from asserting as a defense that any other person or entities, included in this action or not, were negligent or caused the injuries suffered by the Plaintiff; (2) a jury instruction that, as a matter of law, Defendants Phillip J. Saul and Dabin Trucking acted negligently; and (3) a jury instruction that, as a matter of law, Defendants Phillip J. Saul and Dabin Trucking acted with reckless indifference toward Plaintiffs. Defendants filed a brief in opposition (Doc. 47) to Plaintiffs' motion, and Plaintiffs filed a reply brief (Doc. 50). This matter is ripe for disposition.

         II. Discussion

         Sanctions are appropriate when a party, after being served with proper notice, fails to appear for a deposition. Fed.R.Civ.P. 37(d) (1XA). Failure to appear "is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order...." Fed.R.Civ.P. 37(dX2). Specifically, Federal Rule of Civil Procedure 37(d) states as follows:

         (d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection.

         (1) In General.

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:
(i) a party or a party's officer, director, or managing agent-or a person designated under Rule 30(b)(6) or 31(a)(4)-fails, after being served with proper notice, to appear for that person's deposition; or
(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.
(B) Certification. 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.
(2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d(l)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).
(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b(2)(A)(i)-(vi). Instead of or in addition to these 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 ...

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