United States District Court, D. Connecticut
RULING ON DEFENDANTS' MOTION FOR ORDER TO COMPEL
PLAINTIFF'S DEPOSITION AND/OR FOR A NONSUIT OR DISMISSAL
CHARLES S. HAIGHT, JR. Senior United States District Judge.
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. Defendants now move the Court for an order
to compel Plaintiff's deposition or, in the alternative,
to dismiss his action.
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.
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)." Id.
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. 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.
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).
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.
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).
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.
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.
Deposition Testimony under Rules 26, 30, 37, & ...