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Rodriguez v. Clark

United States District Court, D. Connecticut

May 31, 2017

FABIAN RODRIGUEZ, Plaintiff,
v.
JOSHUA CLARK, JOHNATHAN JOHN, and KEITH EDELE, Defendants.

          RULING ON DEFENDANTS' MOTION FOR ORDER TO COMPEL PLAINTIFF'S DEPOSITION AND/OR FOR A NONSUIT OR DISMISSAL [DOC. 33]

          CHARLES S. HAIGHT, JR. Senior United States District Judge.

         I. INTRODUCTION

         Plaintiff Fabian Rodriguez brings this civil rights action, pursuant to 42 U.S.C. § 1983, against three police officers in the Willimantic Police Department (herein collectively "Defendants") in their individual capacities.[1] Defendants now move the Court for an order to compel Plaintiff's deposition or, in the alternative, to dismiss his action.

         The Court briefly summarizes the facts as follows. Plaintiff alleges that the officers, while acting under color of state law, "mistakenly believed that [he] was involved in some sort of illegal drug operation" and exercised "unreasonable force in violation of [his] rights under the Fourth Amendment." Doc. 1, ¶¶ 7- 8. Specifically, Plaintiff alleges that the three police officers acted jointly and in concert to subject Plaintiff "to a vicious and brutal beating, striking him about the face and head with weapons and fists repeatedly and causing him to suffer severe trauma particularly to the nasal and left orbital area of his head and face." Id., ¶ 7. Plaintiff asserts that his alleged injuries required him to "undergo extensive medical treatment, severe pain, and emotional distress." Id. Plaintiff prays for compensatory damages, punitive damages, attorneys' fees, and costs. Id., at 3.

         II. DISCUSSION

         A. Pending Motion

         Pending before the Court is Defendants' motion, pursuant to Federal Civil Rule 37 and Local Civil Rule 37, for an order to compel Plaintiff Fabian Rodriguez to appear for a deposition on or before June 15, 2017. See Doc. 33. In the alternative, Defendants request a nonsuit or order dismissing the matter. Id. In support of their motion, in compliance with both Federal Rule 37(a) and Local Rule 37(a), Defendants assert that "counsel have made good faith efforts to resolve the issued raised by this motion" but "plaintiff has repeatedly failed and/or refused to appear for a deposition pursuant to Federal Rule of Civil Procedure 30(a)(1)."[2] Id.

         Summarizing the relevant facts, Defendants state that Plaintiff has alleged in his Complaint that on March 13, 2013, Defendants subjected him to "unreasonable force in violation of his Fourth Amendment rights." Doc. 33-1 (Defendants' Memorandum) (citing Doc. 1 ("Complaint"), ¶ 8). Defendants' counsel, Attorney James N. Tallberg, seeks to depose Plaintiff to determine the facts upon which Plaintiff relies to assert his claim. Tallberg has testified by affidavit that after consulting with Plaintiff's counsel on October 26, 2016, he noticed Plaintiff's deposition for November 29, 2016.[3] See Doc. 33-2 (Affidavit of Defendants' Counsel, James N. Tallberg), ¶¶ 3-5. Plaintiff's counsel "confirmed receipt of the notice of deposition on October 26, 2016." Id., ¶ 5.

         On November 22, 2016, Tallberg agreed to "reschedule [P]laintiff's deposition at the request of [his] counsel due to a scheduling conflict." Id., ¶ 6. The next day, on November 23, the Chambers of Magistrate Judge Sarah A. L. Merriam reached out to the parties to "gauge interest in scheduling a settlement conference." Doc. 33-1, at 2. Having received positive responses from counsel, on November 28, 2016, Magistrate Judge Merriam scheduled a settlement conference for February 16, 2017. Doc. 33-2, at ¶ 7; see also Doc. 21 & 22 ("Notice" and "Order" with instructions for 2/16/2017 settlement conference).

         Prior to the scheduled settlement conference, on January 3, 2017, Tallberg contacted Plaintiff's counsel regarding "overdue discovery responses, " Doc. 33-2, ¶ 8; and three days later, on January 5, 2017, Plaintiff's counsel informed Tallberg that "he was having difficulty locating his client, " id., ¶ 9. On January 9, 2017, Tallberg received the Plaintiff's "overdue discovery responses." Id., ¶ 10. On January 13, 2017, Tallberg's office "coordinated with [P]laintiff's counsel to reschedule the [P]laintiff's deposition." Id., at ¶ 11. On January 17, 2017, Magistrate Judge Merriam's Chambers "continued the mediation until March 29, 2017[, ] so that counsel could coordinate and conduct the [P]laintiff's depostion." Id., ¶ 12; see also Doc. 23 ("Order, " dated 1/17/2017). On January 19, 2017, Tallberg re-noticed Plaintiff's deposition for March 10, 2017, "pursuant to the availability of [P]laintiff's counsel." Doc. 33-2, ¶ 13. Plaintiff's counsel confirmed receipt of the re-noticed deposition on January 19, 2017. Id.

         Tallberg further testified in his affidavit that Plaintiff's counsel informed him on March 8, 2017, that "his client had gone missing and that he was unable to locate him in anticipation of the March 10, 2017 deposition." Id., ¶ 14. Therefore, on March 10, 2017, Tallberg filed a motion to continue the settlement conference for 60 days in order to allow him to depose the Plaintiff before the conference. Doc. 28 ("Motion for Continuance, " dated 3/10/2017); see also Doc. 33-2, ¶ 15. On March 13, 2017, Magistrate Judge Merriam granted the motion and rescheduled the conference for July 7, 2017. Doc. 30 ("Order, " dated 3/13/2017).

         In an effort to depose Plaintiff prior to the rescheduled July 7 date of the conference, on April 11, 2017, Tallberg "coordinated with [P]laintiff's counsel and re-noticed the [P]laintiff's deposition for May 2, 2017, " which Plaintiff's counsel "pre-clear[ed]." Doc. 33-2, ¶¶ 17-18. Nonetheless, on May 1, 2017, Plaintiff's counsel informed Tallberg that once again "he could not locate his client and would be unable to produce him at the deposition." Id., ¶ 18.

         Since May 1, 2017, Defendants' counsel, Tallberg, has "attempted to work with [P]laintiff's counsel on multiple occasions" to attempt to schedule and conduct the Plaintiff's deposition. Id., ¶ 19. These efforts have been unsuccessful. Id. Absent the opportunity to depose the Plaintiff, Defendants assert that they will be unable to participate in meaningful settlement discussions at the scheduled conference on July 7, 2017. Id., ¶ 20. Because Plaintiff has failed to make himself available to be deposed, Defendants request that the Court order Plaintiff to submit to a deposition on or before June 15, 2017, or dismiss the action pursuant to Rule 37(d), Fed.R.Civ.P. This Ruling resolves that motion.

         B. Deposition Testimony under Rules 26, 30, 37, & ...


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