Opinion
CIVIL ACTION No. 01-0813 Sec. `T' (3).
June 5, 2003.
ORDER
Before the Court is Defendant, BP Oil Company, Motion for Sanctions against Plaintiff, Charmaine Perrilloux. The Motion was filed as a `Joint Motion', addressing the similar filing in a similar case, civil action 02-1227 `T' (4), Charmaine Perrilloux v. BP Corporation Long-Term Disability Plan. The present motion in the above-captioned matter came before this Court for hearing without oral argument on May 21, 2003, and as of that date, the Court had not received an opposition memorandum from Plaintiff. Subsequently, Plaintiff came to the Court to provide oral argument and to explain her absence from the deposition. At that time, the Court explained proper procedure for filings and appearance at oral argument. As pro se litigants are given additional discretion in proceeding with the procedural aspects of Court, the Court explained, to the Plaintiff, the ramifications of not filing an opposition to the motion, the process for possibly filing an opposition out-of-time, which was the scenario presently before the Court, and the Plaintiff was referred to the pro se desk in the Clerk of Court's office. The Court informed the Plaintiff that the Chambers staff could not inform Plaintiff on what information to include any potential opposition, but informed Plaintiff on the procedural possibilities for filing out-of-time. As of today's date, the Court has not received any correspondence from the Plaintiff regarding the Defendant's Motion for Sanctions. Having considered the Motion for Sanctions, the want of an opposition from the Plaintiff, the law, and the record, the Court is hereby ready to rule.
The procedural facts are well documented in the Court's record and the Defendant's Motion for Sanctions, which outlines a case history that is abundant with Plaintiffs numerous failures to meet discovery deadlines and non-cooperative nature. This non-cooperative nature has continued to the Plaintiff since the withdrawal of her counsel on November 26, 2002.
The current motion comes before this Court following the absence of Plaintiff at a deposition scheduled for April 16, 2003. Following the partial deposition of Plaintiff on July 26, 2002, the Defendants attempted to conduct the second part of the Plaintiffs deposition on three occasions, July 30, 2002, October 16, 2002, and November 25, 2002; however, all three attempts met with failure of the Plaintiff to attend the deposition or other various reasons. After receiving no response from a March 10, 2003 letter to Plaintiff requesting available deposition dates, Defendant sent a letter by certified mail to the Plaintiff on March 28, 2003, setting a deposition date of April 16, 2003. See Motion for Sanctions, Exhibit L. The Plaintiff received and signed for this letter by certified mail certificate. Id. On April 16, 2003, Plaintiff did not appear for the scheduled deposition and did not attempt to cancel nor reschedule the deposition, prompting the Motion for Sanctions. A Certificate of Non-Appearance was recorded by the certified court reporter present at the deposition. See Motion for Sanctions, Exhibit M.
Under Fed.R.Civ.P. 37, sanctions are appropriate due to a failure to cooperate in the discovery process of a case. This Court may impose the requested relief pursuant to Rule 37 due to Plaintiff pro se's willful refusal to attend depositions after service of proper notice, failure to respond to properly served production requests, and failure to disclose information required by Fed.R.Civ.P. 26.
In her affidavit attached to the Motion for Sanctions, Exhibit A, Counsel for Defendant asks for the following relief:
A. Preparing for Plaintiff's depositions for November 22, 2002, and March 16, 2003: 8.30 hours;
B. Traveling, waiting, and conference time with Plaintiff pro se for the purpose of taking Plaintiff's deposition on March 16, 2003: 8.00 hours;
C. Preparation time for correspondence to Plaintiff or her former counsel concerning available deposition dates or failure to respond properly to discovery: 1.50 hours;
D. Preparation time of Joint Motion for Sanctions: 10.65 hours;
E. Total bill charged to Defendants for the above state services is $6.191.23. These fees were reasonable;
F. Defendants incurred costs in the amount of $280 and $120 for the videographer and court reporter, respectively, for Plaintiffs deposition on April 16, 2003.
Additionally, Defendant asks for a dismissal of the Plaintiffs claims.
Under Fifth Circuit precedent, the Court has noted that discovery sanctions under Rule 37 "are flexible and, within reason, may be applied in as many or varied forms as the Court desires by exercising broad discretion in light of the facts of each case." Guidry v. Continental Oil Co., 640 F.2d 523, 533 (5th Cir. 1981), cert. denied, 454 U.S. 818 (1981). "Rule 37 only requires the sanctions that the Court imposes hold the scales of justice even." Id.
This Court feels that the actions of Plaintiff have shown a disrespect for the procedure of this Court, and that sanctions are warranted in this case. The Court, while directing the Motion for Sanctions to the recent deposition date, takes notice of the egregious procedural history of non-compliance by the Plaintiff in this matter. As such, while the Court orders that sanctions be issued in this above-captioned matter, the Court is of the opinion that too heavy a sanction would tip the scale of justice too heavily to one side. The Court orders sanctions in the amount of $400. This includes the cost of the court reporter and videographer from the deposition on April 16, 2003. At this time, the Court denies Defendant's request for other sanctions and for dismissal; however, upon failure of parties to complete Plaintiffs deposition within THIRTY (30) days of the entry of this order, the Defendant will be allowed to re-urge their motion for sanctions for costs and preparation and/or dismissal.
Accordingly,
IT IS ORDERED that sanctions are hereby ordered against Plaintiff, Charmaine Perrilloux, in the amount of $400 (FOUR HUNDRED DOLLARS AND NO/100); IT IS FURTHER ORDERED that Defendant's request for additional sanctions, be and the same is hereby DENIED. IT IS FURTHER ORDERED that Defendant's request for dismissal, be and the same is hereby DENIED. IT IS FURTHER ORDERED that upon failure of parties to complete Plaintiff's deposition within THIRTY (30) days of the entry of this order, the Defendant will be allowed to re-urge their motion for sanctions for costs and preparation and/or dismissal.