                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 ROOSEVELT D. GUY,

                        Plaintiff,

                v.                                    Civil Action No. 12-1557 (ESH)

 THOMAS J. VILSACK,

                        Defendant.



                                     MEMORANDUM OPINION

       Plaintiff Roosevelt Guy filed a pro se lawsuit against Thomas Vilsack in his official

capacity as the Secretary of the Department of Agriculture (“USDA”), alleging that USDA

denied his farm loan application based on his race, in violation of the Equal Credit Opportunity

Act, 15 U.S.C. § 1691. (Complaint, Sept. 18, 2012 [ECF No. 1].) Defendant has now moved to

dismiss plaintiff’s case based on plaintiff’s failure to comply with various Court orders and his

allegedly inadequate discovery responses. (Motion to Dismiss, June 21, 2013 [ECF No. 20]

(“Mot.”).) For the reasons stated below, defendant’s motion will be denied.

                                         BACKGROUND

I.     DISCOVERY RESPONSES

       During discovery, defendant served on plaintiff twenty-one requests for production,

thirteen requests for admissions, and fifteen interrogatories. (See id. at 7-16.) Plaintiff e-mailed

documents and responses to defense counsel on May 26 and May 28, 2013. (See id. at 7-8.) In

addition, he separately mailed other documents and responses to defendant, which were received

by defense counsel on or about June 6, 2013. (See id. at 7.) However, on May 26, 2013,


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plaintiff had emailed defense counsel and instructed her to “please ignore the responses in the

packet [he] mailed.” (See Mot. Ex. C, Plaintiff’s May 26, 2013 Email.) Although defendant has

apparently sought clarification as to the status of the hard-copy documents, to date plaintiff has

not responded. (See Mot. at 7-8.)

        In his e-mailed materials, plaintiff provided cursory responses to many of the

interrogatories, instructing defendant to refer to plaintiff’s complaint and the investigation report

produced in response to his internal complaint. (See id. at 8-13 (reproducing plaintiff’s

responses to Interrogatory Nos. 1-6).) He also declined to provide any information about his

requests for damages because he said he intended to ask the court to bifurcate discovery with

respect to damages. (See id. at 13-14 (reproducing plaintiff’s response to Interrogatory Nos. 7,

8).) In addition, he declined to provide any information about the mental and emotional

suffering he alleges he suffered in response to defendant’s actions, arguing that such information

is protected by the doctor-patient privilege. (See id. (reproducing plaintiff’s response to

Interrogatory No. 8).) Finally, he did not provide any response to Interrogatory Nos. 9-15. (See

id. at 14.)

        With respect to defendant’s requests for production, defendant claims that none of the

hard-copy documents that plaintiff mailed to defendant’s office appear to be responsive to any of

defendant’s document requests. (See id. at 15.) Furthermore, defendant claims that the

documents attached to plaintiff’s May 26 and May 28 e-mails “contained different, less complete

responses than the documents in his mailing.” (See id.)

        Finally, it appears that plaintiff’s responses to defendant’s requests for admissions were

included in the mailing that he later instructed defendant not to consider. (See id. at 15-16.) It is

unclear from the record whether any such responses were also included in his e-mailed



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responses. Defendant asserts that the responses included in the hard-copy mailing are inadequate

because some of them contained blanket or irrelevant objections. (See id. at 16.)

II.    PLAINTIFF’S DEPOSITION

       Plaintiff, who resides in Ohio, appeared at the initial scheduling conference by telephone.

At that time, the Court set a status conference following the close of discovery for June 11, 2013,

and instructed plaintiff that he would need to appear in person at that conference. (See

Scheduling Order, Jan. 16, 2013 [ECF No. 11].)

       During discovery, defendant requested plaintiff’s availability for his deposition, and

plaintiff made it clear that he was only willing to participate by telephone. (See Motion to

Compel Plaintiff to Appear in Person for his Deposition in this Jurisdiction, May 14, 2013 [ECF

No. 12] (“Motion to Compel”) Exs. A-C.) In response, defendant moved to compel plaintiff to

appear for his deposition in person and to extend the discovery deadline to accommodate the

deposition. (See generally Motion to Compel.) Plaintiff offered two reasons for his refusal to

appear for his deposition in person: first, that he believed the government wanted to observe his

mental impressions, which he argued were privileged based on his status as a pro se litigant; and

second, that he feared for his safety at the hands of the government. (See Order, May 28, 2013

[ECF No. 15] at 1-2.) This Court granted defendant’s motion, but arranged for plaintiff’s

deposition to be taken in the United States Courthouse and overseen by Magistrate Judge

Deborah Robinson. (See id. at 2.) The deposition was scheduled to take place on June 10, 2013,

the day before the previously-scheduled post-discovery status conference, so that plaintiff would

only have to make one trip to Washington, D.C., for both events.

       On June 10, 2013, plaintiff did in fact appear in this courthouse for his deposition.

During the deposition, plaintiff had with him some notes he had prepared in advance of the



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deposition. (See Mot. Ex. A, Guy Deposition Transcript Excerpts (“Tr.”) at 40.) Defense

counsel asked plaintiff not to look at his notes while testifying unless it was necessary to refresh

his recollection. (See id. at 107-08.) At that time, after approximately one and one-half hours on

the record, plaintiff stated that he wanted to go talk to Magistrate Judge Robinson, and left the

room. (See id. at 108.) Defense counsel followed plaintiff into the hallway so that she could be

present for his discussion with Judge Robinson. (See Mot. at 5.) There, in front of several

marshals and other court staff, plaintiff stated that he did not want to be alone with defense

counsel behind chambers doors, and went back into the deposition courtroom. (See id.) Once

back in the courtroom, defense counsel “demand[ed] an apology” for plaintiff’s allegedly

“slanderous remarks.” (Tr. at 109.) Plaintiff stated that he was having a panic attack, and then

left the deposition. (Id.)

        Later that same day, Magistrate Judge Robinson held a telephone call on the record with

defense counsel (who was present in the courtroom) and plaintiff (who had left the building).

(Mot. at 6.) On that call, Judge Robinson first directed plaintiff to return to the courthouse to

continue his deposition that afternoon. (Tr. at 118.) When plaintiff resisted, stating that he was

“very scared” and needed to take his medication and speak with his father, Judge Robinson

amended her order and instructed him to appear at 9:30 a.m. the next day to continue the

deposition. (Id. at 118, 124-25.) She also offered to remain in the courtroom for the remainder

of the deposition to make plaintiff more comfortable. (Id. at 118.)

        The next morning, plaintiff did not appear at the courthouse at 9:30 a.m. for his

deposition. (See Mot. at 7; Plaintiff’s Response to Defendant’s Motion to Dismiss, July 8, 2013

[ECF No. 21] (“Opp’n”) at 3.) He also did not appear at 11:30 a.m. for the status conference

before this Court. Instead, he called chambers and informed the Court that his anxiety had been



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so severe that he had driven back to his home in Ohio during the night. (See Mot. at 7; Opp’n at

3; Order, June 11, 2013 [ECF No. 19] at 1.)

                                           ANALYSIS

I.     LEGAL STANDARDS

       Defendant seeks dismissal of plaintiff’s case under either Rule 37 or Rule 41. (See Mot.

at 3.) Rule 37 permits the Court to order sanctions in response to a party’s failure to attend his

own deposition, serve answers to interrogatories, or respond to a request for inspection. Fed. R.

Civ. P. 37(d). A range of sanctions are available to the Court in such a situation, including

dismissal of the action. Id.

       Rule 41 states, in pertinent part: “If the plaintiff fails to prosecute or to comply with

these rules or a court order, a defendant may move to dismiss the action or any claim against it.”

Fed. R. Civ. P. 41(b). However, the D.C. Circuit has admonished that “[d]ismissal is a harsh

sanction and should be resorted to only in extreme cases.” Camps v. C&P Tel. Co., 692 F.2d

120, 124 (D.C. Cir. 1981) (internal quotation marks omitted). Thus, “[a] District Court may

dismiss under Rule 41(b) ‘only after less dire alternatives have been explored without success.’”

Gardner v. United States, 211 F.3d 1305, 1308 (D.C. Cir. 2000) (citing Trakas v. Quality

Brands, Inc., 759 F.2d 185, 187 (D.C. Cir. 1985)). “Considerations relevant to ascertaining

when dismissal, rather than a milder disciplinary measure, is warranted include the effect of a

plaintiff’s dilatory or contumacious conduct on the court’s docket, whether the plaintiff’s

behavior has prejudiced the defendant, and whether deterrence is necessary to protect the

integrity of the judicial system.” Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C.

Cir. 1990).




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II.     DISCOVERY RESPONSES

        Defendant argues that plaintiff’s discovery responses were inadequate and justify

dismissal of his case. (See Mot. at 20-21.) Plaintiff did not offer any substantive response to

defendant’s complaints, other than to say that “Defendant has no authority to request sanctions

simply because Defendant does not like Plaintiff’s Response to Defendant’s written discoveries.”

(Opp’n at 3.) Plaintiff also pointed out that defendant failed to file a certification stating that it

“has in good faith conferred or attempted to confer with [plaintiff] in an effort to obtain the

answer or response without court action,” as required by Rule 37(d)(1)(B). (See id.)

        As an initial matter, plaintiff is correct that defendant has not previously raised any

concerns about plaintiff’s discovery responses prior to seeking sanctions from this Court. Not

only does Rule 37 require such an attempt at resolution, but the Scheduling Order in this case

clearly instructs the parties that:

        Counsel are required to confer in good faith in an effort to resolve all discovery
        disputes before bringing the dispute to the Court. If counsel are unable to resolve
        the discovery dispute, counsel shall arrange a telephone conference with the Court
        by contacting Chambers. Counsel shall not file discovery motions without a prior
        conference with the Court and opposing counsel.

(Scheduling Order, Jan. 16, 2013 [ECF No. 11] ¶ 9.) In light of defendant’s failure to

follow the procedures laid out by both the federal rules and by this Court’s Scheduling

Order, defendant cannot seek dismissal based on deficiencies in plaintiff’s discovery

responses, especially since all discovery (with the exception of plaintiff’s deposition) has

been completed and thus, any deficiencies in plaintiff’s discovery responses cannot be

raised at this late date.

III.    PLAINTIFF’S DEPOSITION

        Defendant also seeks dismissal of plaintiff’s case based on his refusal to complete his in-



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person deposition. (See Mot. at 18-20.) There can be little doubt that plaintiff has disobeyed

orders of this Court and of Magistrate Judge Robinson; indeed, plaintiff admits as much. (See

Opp’n at 3.) Nor can there be any doubt that his failure to complete his deposition has

prejudiced defendant. Given the limited number of documents produced by plaintiff, his

deposition testimony represents defendant’s only real opportunity to investigate plaintiff’s

claims.

          However, the Court is not convinced that dismissal of plaintiff’s case is the appropriate

sanction at this time. Plaintiff has been consistent in his explanation that he defied this Court’s

orders because he struggles with anxiety. First, he stated to the Court that his resistance to

appearing for his deposition in person stemmed in part from the fact that he feared for his safety

at the hands of the government. (See Order, May 28, 2013 [ECF No. 15] at 2.) Then, the day of

his deposition, he repeatedly stated that he got very anxious during his deposition and that he

began having a panic attack after his confrontation with defense counsel in the courthouse

hallway. (See Tr. at 109, 114-18.) He explained multiple times that he was “very scared” (id. at

118) or “very in fear” (id. at 125), and that he needed some time to take his medication and think

things through. (Id. at 118, 124.) In his opposition to defendant’s motion, he reiterated that he

“experienc[ed] a horrific panic attack,” and “simply could not bring [him]self to return to the

Court house” on the day of the deposition. (Opp’n at 3.) Indeed, he claims that his “anxiety was

so severe [he] drove, through the night, back to Ohio.” (Id.) Thus, this is not a case where

plaintiff has been intentionally “dilatory or contumacious.” Bristol Petroleum, 901 F.2d at 167.

Moreover, in light of the fact that plaintiff’s actions have been compelled by his unsettled mental

state, it cannot be said that imposing harsh sanctions on plaintiff would deter future similar




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conduct by this plaintiff or others. Thus, the Court declines to grant the “harsh sanction” of

dismissal of plaintiff’s case at this time. Camps, 692 F.2d at 124.

       That leaves the Court with the question of how to proceed in this matter. Plaintiff stated

in his motion that he cannot bring himself to come back to Washington, D.C. (Opp’n at 3.)

However, as this Court made clear in its Order requiring plaintiff to appear for his deposition the

first time, “[a]s the plaintiff in this matter, Mr. Guy must be present for his deposition in the

forum in which he filed suit.” (Order, May 28, 2013 [ECF No. 15] at 2.) See Paleteria La

Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. de C.V., 2013 WL 1831296, at *4 (D.D.C.

May 1, 2013) (“A party that chooses to initiate litigation and invoke the legal protections of the

forum should expect to appear for deposition in that jurisdiction.” (citing Cobell v. Norton, 213

F.R.D. 43, 47 (D.D.C. 2003)). Moreover, although the Federal Rules of Civil Procedure do

provide that a deposition may be taken by remote means, see Fed. R. Civ. P. 30(b)(4), the Court

does not believe that it would be appropriate to deny defendant the benefit and convenience of an

in-person deposition in this case. Rather, there are less restrictive methods of managing

plaintiff’s anxiety than permitting a telephone or video deposition. One of those methods—

having the deposition take place in the courthouse in the presence of the magistrate judge to deal

with any disputes that may arise—has already been tried, to no avail. However, the Court is

willing to go one step further and have Magistrate Judge Robinson remain in the courtroom for

the duration of the deposition, so as to assuage plaintiff’s concerns about ever having to be alone

with opposing counsel.

       The Court will therefore deny defendant’s motion to dismiss plaintiff’s case, and will

instead order plaintiff to return to Washington, D.C., to complete his deposition in the federal

courthouse. By this Memorandum Opinion, the Court is requesting Magistrate Judge Robinson



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to set a time for this deposition within the next forty-five days and that it be held in the

Magistrate Judge’s presence. The deposition should be limited to no more than five and a half

hours and it can occur over a two-day period. Immediately after the conclusion of the

deposition, there will also be a status conference before this Court in Courtroom 23A. Should

plaintiff still refuse to return to this courthouse to complete his deposition, the Court will have no

choice but to dismiss plaintiff’s case under Fed. R. Civ. P. 41.

                                          CONCLUSION

       For the foregoing reasons, defendant’s motion to dismiss is denied.


                                                                           /s/
                                                               ELLEN SEGAL HUVELLE
                                                               United States District Judge

Date: August 19, 2013




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