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Dismissal Sanction for Missed Depositions

Plaintiff company’s failure to produce two witnesses from abroad for deposition, and refusal to respond to discovery during the “pleading stage” of the litigation, lead the Alexandria U.S. District Court Magistrate Judge to recommend dismissal of plaintiff’s suit, without prejudice, and an order to pay defendant’s attorney’s fees.

At a hearing on plaintiff’s motion to extend a discovery deadline, plaintiff’s counsel made clear that plaintiff places sole responsibility on counsel for producing two witnesses for deposition. The court inquired of counsel as to what steps it took to produce the witnesses before the close of discovery. Plaintiff’s counsel informed the court that it had neither requested the witnesses to obtain visas for travel to the U.S. nor informed them that visas were necessary between November 2013, when the depositions were noticed, and early January 2014. This was despite defendant filing a motion to compel the production of witnesses on Nov. 26, 2013. Upon consideration of the filings of the parties and the arguments made by counsel for both sides, this court determined that no good cause existed and denied the motion to extend.

As a result of plaintiff’s conduct, defendant filed the instant motion seeking sanctions, specifically, dismissal of all of plaintiff’s claims with prejudice and an award of fees and costs. The magistrate judge finds plaintiff fully culpable for its failure to produce the two party witnesses, Tarun Shetty and Daniel Mayna, for their scheduled depositions in Virginia. Defendant informed plaintiff as early as Nov. 7, 2013, that it wanted to depose them in Virginia. Counsel for plaintiff alleges he personally emailed his client clarifying exactly who needed to appear for depositions in January and attached the deposition notices, and alleges his co-counsel spoke directly with Shetty and Mayna and asked them to appear. He alleges the witnesses not only did not apply for visas to enter the U.S., on Jan. 9, 2014, it appears they had not even returned to their home countries to begin the visa application process. Despite discovery commencing on Aug. 28, 2013, and this court issuing an order on Dec. 6, 2013, compelling plaintiff to produce its witnesses for depositions in Virginia in January, plaintiff had taken no action to ensure their appearance.

The undersigned finds the failure to produce the witnesses for deposition is based more upon the blameworthiness of the lawyers than the client. While the client is not blameless here, the undersigned finds the lawyers’ actions were more blameworthy than those of its client. Plaintiff’s counsel assumed that because the witnesses are “world travelers,” they did not need to confirm whether they had taken the steps necessary to obtain visas to enter the U.S. The lack of depositions will result in prejudice to the judicial process and the administration of justice, and prejudice to defendant.

The magistrate judge recommends dismissal without prejudice. This permits plaintiff to refile a complaint and have the case resolved on the merits, without subjecting defendant to an unfair trial. Given the pending motion to voluntarily dismiss, dismissal without prejudice in and of itself would be insufficient to deter future misconduct by plaintiff because such relief would give plaintiff exactly what it seeks in its motion. Therefore it is recommended that plaintiff be ordered to pay reasonable attorney’s fees and costs incurred as a result of defendant filing the motion to compel, opposing the motion to extend and filing the motion for sanctions, as well as reasonable fees and costs incurred by defendant in the future for answering any subsequently filed complaint by plaintiff.

Alpha Omega Services v. Dyncorp Int’l LLC (Davis) No. 1:13cv809, Feb. 11, 2014; USDC at Alexandria, Va. VLW 014-3-194, 16 pp.

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