                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
________________________________
                                )
KENNETH CAMPBELL, et al.,       )
                                )
               Plaintiffs,      )
                                )
          v.                    ) Civil Action No. 99-2979 (EGS)
                                )
NATIONAL RAILROAD PASSENGER     )
CORPORATION,                    )
                                )
               Defendant.       )
________________________________)

                       MEMORANDUM OPINION

  When a plaintiff files a lawsuit, he takes on certain

responsibilities, including the duty to participate in discovery

in good faith. A component of this duty is that parties must

appear for properly noticed depositions. Robert Guerra and

Terrence Whitesides, two named plaintiffs in this putative class

action against the National Railroad Passenger Corporation

(“Amtrak”), failed to appear for their depositions during the

class-discovery phase of litigation. Pending before the Court is

Amtrak’s motion for relief under Federal Rule of Civil Procedure

37(d), which seeks exclusion of the legal claims of Guerra and

Whitesides and an award of costs and attorneys’ fees.

  The failure of Guerra and Whitesides to appear for depositions

is disturbing and the Court finds itself required by Rule 37(d)

to award Amtrak some of the expenses incurred as a result of

that failure. Nevertheless, the Court “has the right, if not the
duty, to temper justice with understanding.” 8B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 2284

(3d ed. 2015). Because the existing record does not provide

detail regarding the plaintiffs’ claimed inability to pay or the

amount of costs and fees that Amtrak seeks to recover, the Court

requires more information before fashioning an appropriate

monetary sanction. In view of the fact that any prejudice caused

by plaintiffs’ actions can be cured by striking the evidence

they submitted in support of class certification, the Court

concludes that dismissal of their legal claims would be

excessive. Accordingly, upon consideration of Amtrak’s motion,

the response and reply thereto, the applicable law, and the

entire record, the Court GRANTS IN PART AND DENIES IN PART

Amtrak’s motion.

I.     Background
	
     On March 1, 2012, the Court entered an Amended Scheduling

Order. See Amended Scheduling Order, ECF No. 310. That Order

provided that Amtrak would be permitted to depose “any

individual who submits an affidavit, declaration, or statement

in support of Plaintiff’s Motion for Class Certification.” Id.

at 1. Plaintiffs Guerra and Whitesides each submitted

declarations in support of plaintiffs’ motion for class

certification. See Declaration of Robert Guerra, ECF No. 304-8

at 327–335; Declaration of Terrence Whitesides, ECF No. 304-8 at


	                                 2
521–27. Rather than deposing everyone who submitted a

declaration, Amtrak selected forty-one individuals, including

Guerra and Whitesides. See Declaration of Katherine L. Hoekman

(“Hoekman Decl.”), ECF No. 332-2 ¶ 4. In addition to the issues

with Guerra and Whitesides, scheduling issues arose regarding

other depositions, persuading the Court to grant two extensions

of the deposition deadline, for a total extension of twenty-four

days. See Minute Order of May 11, 2012; Minute Order of June 5,

2012.

    A.     Mr. Guerra Fails to Appear for a Deposition.

    After significant difficulty scheduling Mr. Guerra’s

deposition, plaintiffs’ counsel informed Amtrak on June 6, 2012

that Mr. Guerra could be available for a deposition on June 7,

2012. See Hoekman Decl. ¶ 15. Mr. Guerra’s deposition was

noticed for 9:00 a.m. on June 7, 2012 in Washington, D.C. See

id. ¶ 19; Guerra Deposition Notice, Ex. K to Mot. to Exclude,

ECF No. 332-13. Shortly after 9:00 a.m., plaintiffs’ counsel

informed defendant’s counsel by phone that Mr. Guerra would not

be attending. See Hoekman Decl. ¶ 20. Plaintiffs’ counsel

explained the reasons more fully in an email later that morning:

         We understand that Robert Guerra decided not to appear
         for his deposition this morning out of his personal
         concerns and fears of retaliation, including possible
         retribution by former co-workers if he were to testify
         at this time. . . . [W]e recognize that the court
         reporter appearance fee must be paid. We will tender
         that payment forthwith if Amtrak will agree not to pursue


	                                   3
         any other monetary sanction   against   Mr.   Guerra   or
         Plaintiffs’ counsel.

Ex. L to Def.’s Mot., ECF No. 332-14 at 2; see also Declaration

of Timothy B. Flemming (“Flemming Decl.”), ECF No. 341-1 ¶ 10.

Amtrak’s counsel had prepared for the deposition before it was

cancelled. See Hoekman Decl. ¶ 23.

    B.     Mr. Whitesides Fails to Appear for a Deposition.

    Plaintiffs’ counsel suggested that Mr. Whitesides be deposed

in New York City on May 2, 2012 at 2:00 p.m. See id. ¶ 24. A

deposition notice for that date, time, and location was issued.

See id. ¶ 25; First Whitesides Dep. Notice, Ex. P to Def.’s

Mot., ECF No. 332-18. At 9:00 p.m. on May 1, 2012, plaintiffs’

counsel informed defendant’s counsel that the deposition could

not go forward. See Hoekman Decl. ¶ 26. Plaintiffs’ counsel had

“just received a phone call from Terrence Whitesides” who

“experienced a death in his family this evening, apparently a

relative to whom he was close.” Ex. Q to Def.’s Mot., ECF No.

332-19.

    Plaintiffs’ counsel later proposed that the deposition take

place on May 23, 2012 at 2:00 p.m. in Washington, D.C. See Ex. R

to Def.’s Mot., ECF No. 332-20 at 2. Amtrak issued a deposition

notice for that date, time, and location. See Second Whitesides

Dep. Notice, Ex. T to Def.’s Mot., ECF No. 332-22. On May 22,

2012, plaintiffs’ counsel cancelled Mr. Whitesides’s deposition,



	                                  4
due to their inability to contact Mr. Whitesides. See Ex. U to

Def.’s Mot., ECF No. 332-23 at 2; Flemming Decl. ¶ 12

(“Plaintiffs’ counsel were unable to contact Whitesides after

repeated attempts. We kept trying, without success, right up to

the day before the deposition.”). Due to the short notice of

each cancellation, Amtrak’s attorneys had twice begun preparing

for Mr. Whitesides’s deposition. See Hoekman Decl. ¶ 30.

    C.   Amtrak Moves for Relief Under Rule 37(d).

    Currently pending before the Court—and scheduled to be argued

on June 15, 2015—are plaintiffs’ motion for class certification

and defendant’s motion for partial summary judgment on the

plaintiffs’ disparate-impact claims. See Mot. to Certify Class,

ECF No. 303; Mot. for Partial Summ. J., ECF No. 328. Amtrak has

also moved to strike the individual claims of plaintiffs Guerra

and Whitesides, and for payment of attorney’s fees and costs in

connection with those plaintiffs’ failure to appear for

depositions. See Mem. in Supp. of Mot. to Strike Guerra and

Whitesides (“Mot.”), ECF No. 332-1. Plaintiffs oppose the

motion, Opp. to Mot. to Strike Guerra and Whitesides (“Opp.”),

ECF No. 341, and Amtrak has filed a reply brief. See Reply in

Supp. of Mot. to Strike Guerra and Whitesides (“Reply”), ECF No.

361. Because Amtrak’s motion to exclude raises a discrete issue

that is distinct from the motions to be argued on June 15th, the

Court finds that it is efficient to address the motion


	                                5
separately. Because the parties’ positions on the motion to

exclude are clear from their pleadings, oral argument is

unnecessary.

II.   Analysis

    The Court’s authority to sanction parties for discovery

violations derives from Federal Rule of Civil Procedure 37,

which permits the Court, “on motion, [to] order sanctions if:

(i) a party . . . fails, after being served with proper notice,

to appear for that person’s deposition.” Fed. R. Civ. P.

37(d)(1)(A). There is no dispute that Guerra and Whitesides

failed to appear for properly noticed depositions. The dispute

is over the appropriate sanction.

    Amtrak asserts that the only effective sanction would be

dismissal with prejudice, as well as an award of the attorney’s

fees and costs incurred by Amtrak in preparing for the cancelled

depositions and litigating this motion. See Mot. at 1.

Plaintiffs argue that dismissal is not warranted because lesser

sanctions would mitigate any prejudice to Amtrak, and that an

award of costs and fees is not warranted because of the

inability of Guerra and Whitesides to pay. See Opp. at 4;

Flemming Decl. ¶ 15.

    “District courts . . . possess broad discretion to impose

sanctions for discovery violations under Rule 37.” Parsi v.

Daioleslam, 778 F.3d 116, 125 (D.C. Cir. 2015). “The central


	                                6
requirement of Rule 37 is that ‘any sanction must be just,’

which requires in cases involving severe sanctions that the

district court consider whether lesser sanctions would be more

appropriate for the particular violation.” Bonds v. District of

Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996) (quoting Ins. Corp.

v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 707 (1982)).

Rule 37 contains a non-exhaustive list of potential sanctions,

which include the establishment of adverse findings of fact,

striking pleadings, and dismissing a case or entering a default

judgment. See Fed. R. Civ. P. 37(b)(2)(A).

    A.   Dismissal Is Not Warranted.
	
    Dismissal under Rule 37 is “‘an extremely harsh sanction.’”

Founding Church of Scientology v. Webster, 802 F.2d 1448, 1459

(D.C. Cir. 1986) (quoting Trakas v. Quality Brands, Inc., 759

F.2d 185, 186 (D.C. Cir. 1985)). It is “‘to be taken only after

unfruitful resort to lesser sanctions.’” Id. (quoting Jackson v.

Washington Monthly Co., 569 F.2d 119, 123 (D.C. Cir. 1977)); see

also Bonds, 93 F.3d at 808 (“Particularly in the context of

litigation-ending sanctions, we have insisted that ‘[s]ince our

system favors the disposition of cases on the merits, dismissal

is a sanction of last resort to be applied only after less dire

alternatives have been explored without success or would

obviously prove futile.’”) (quoting Shea v. Donohoe Const. Co.,

795 F.2d 1071, 1075 (D.C. Cir. 1986)) (alteration in original).


	                                7
    “[D]ismissal is warranted when (1) the other party has been

‘so prejudiced by the misconduct that it would be unfair to

require [the party] to proceed further in the case,’ (2) the

party’s misconduct has put ‘an intolerable burden’ on the court

by requiring the court to modify its own docket and operations

in order to accommodate the delay, or (3) the court finds it

necessary ‘to sanction conduct that is disrespectful to the

court and to deter similar misconduct in the future.’” Bradshaw

v. Vilsack, 286 F.R.D. 133, 140 (D.D.C. 2012) (quoting Webb v.

District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998))

(emphasis and alteration in original).1 In this case, an Order


																																																								
1 The Court rejects Amtrak’s argument that these legal standards

are inapplicable. See Reply at 1–2 & n.1. Amtrak distinguishes
Shea v. Donohoe Const. Co., 795 F.2d 1071 (D.C. Cir. 1986)
because it dealt with attorney misconduct rather than party
misconduct. See Reply at 2. The D.C. Circuit applies Shea to
requests for dismissal due to a party’s misconduct as well. See,
e.g., Webb, 146 F.3d at 971 (relying on Shea in a case involving
discovery misconduct by a party). Amtrak’s argument that other
cases are inapplicable because they dealt with failures to
respond to discovery other than depositions is also incorrect.
The Court must examine similar factors before granting a
dismissal due to a party’s failure to appear for a deposition.
See, e.g., Founding Church of Scientology, 802 F.2d at 1458
(citing Shea in case involving Rule 37 sanctions for failure to
appear for a deposition, and noting that the Court should
consider, inter alia, “the deterrent effect a sanction will
have” and “the fundamental concern of avoiding the squandering
of scarce judicial resources”); Perez v. Berhanu, 583 F. Supp.
2d 87, 91 (D.D.C. 2008) (considering the three factors in a case
involving sanctions for, inter alia, failure to appear for a
deposition). Indeed, Rule 37(d) encompasses not only failures to
sit for depositions, but also failures to respond to
interrogatories or requests for inspection. See Fed. R. Civ. P.
37(d)(1)(A)(ii).


	                                8
striking the declarations submitted by Guerra and Whitesides in

support of class certification would cure any prejudice to

Amtrak. The burden on the Court may in no way be characterized

as “intolerable.” Finally, although deterrence is an important

concern, it must also be proportional to the party’s action and

the striking of the declarations of Guerra and Whitesides,

combined with a partial award of expenses, will suffice.2

      1.   Prejudice

    “In determining whether a party’s misconduct prejudices the

other party so severely as to make it unfair to require the

other party to proceed with the case, courts look to whether the

aggrieved party has cited specific facts demonstrating actual

prejudice, such as the loss of key witnesses.” Bradshaw, 286

F.R.D. at 140-41. This generally requires a showing that “the

errant party’s behavior ‘has severely hampered the other party’s

ability to present his case.’” Carazani v. Zegarra, 972 F. Supp.

2d 1, 12 (D.D.C. 2013) (quoting Webb, 146 F.3d at 971).



																																																								
2 The legal authorities relied upon by Amtrak in support of its

request for dismissal may be swiftly distinguished. Gurara v.
District of Columbia, No. 2-cv-196, 2006 WL 2501574 (D.D.C. Mar.
6, 2006) addressed the standard for dismissal for failure to
prosecute under Federal Rule of Civil Procedure 41(b), which has
not been invoked in this Rule 37 motion. See id. at *1 n.1.
American Property Construction Co. v. Sprenger Lang Foundation,
274 F.R.D. 1 (D.D.C. 2011) recognized, as this Court recognizes,
that dismissal is an option when Rule 37 is violated. See id. at
12. That court, however, declined to impose dismissal just as
this Court does. Id.	


	                                9
Prejudice will not be found merely because a plaintiff’s

behavior caused the defendant “to waste time and money while

defending this action.” Davis v. D.C. Child & Family Servs.

Agency, 304 F.R.D. 51, 61-62 (D.D.C. 2014); see also Wash.

Metro. Area Transit Comm’n v. Reliable Limousine Serv., 776 F.3d

1, 5 (D.C. Cir. 2015) (“delay that merely prolongs litigation

‘is not a sufficient basis for establishing prejudice’”)

(quoting Berthelsen v. Kane, 907 F.2d 617, 621 (6th Cir. 1990)).

    Amtrak did not explain any prejudice it may have suffered, and

the only prejudice that may be discerned from its pleadings is

that it was forced to expend time and money preparing for

depositions that never took place. This is insufficient to

support dismissal. See Wash. Metro. Area Transit Comm’n, 776

F.3d at 5 (delay alone is not prejudice); Davis, 304 F.R.D. at

61-62 (delay and expenditure of money are not prejudice).

    To be sure, Amtrak is clearly prejudiced by its inability to

examine Guerra and Whitesides regarding the facts they proffered

in their declarations in support of the plaintiffs’ motion for

class certification. Cf. Reply at 4 (noting that “Amtrak went to

great lengths to determine who it would depose based on the

declarants’ specific personal allegations and their purported

knowledge of facts to support Plaintiffs’ class-based

allegations”). The Court does not doubt that the inability to

cross-examine a witness regarding a material fact within that


	                                10
witness’s personal knowledge could prejudice a party. Here,

however, any prejudice arising from Amtrak’s inability to

examine Guerra and Whitesides may be fully cured by striking the

declarations submitted by Guerra and Whitesides. Accordingly,

this is not a case where discovery-related misconduct

irrevocably damages a party’s ability to prove its case. See,

e.g., Embassy of Fed. Republic of Nigeria v. Ugwuonye, 292

F.R.D. 53, 58 (D.D.C. 2013) (default judgment for failure

properly to answer interrogatories and produce documents was

appropriate because the plaintiff was unable to obtain

information vital to presenting its case and opposing a

counterclaim); Berhanu, 583 F. Supp. 2d at 91 (defendants’

refusal to participate at all in discovery caused prejudice

because “[p]laintiffs are unable to present their case for a

merits resolution without any discovery from defendants”). For

that reason, dismissal is not necessary to cure the prejudice to

Amtrak; a lesser sanction will make Amtrak whole.

      2.   Burden on the Court

    The Court may also order dismissal when “the delay or

misconduct would require the court to expend considerable

judicial resources in the future in addition to those it has

already wasted, thereby inconveniencing many other innocent

litigants in the presentation of their cases.” Shea, 795 F.2d at

1075–76 (emphasis in original); see also Bradshaw, 286 F.R.D. at


	                                11
140 (dismissal may be appropriate when the burden placed on the

Court is “‘intolerable’”) (quoting Webb, 146 F.3d at 971).

“District courts have substantial discretion in determining

whether it would be overly burdensome to take remedial action

less drastic than outright dismissal.” Bradshaw, 286 F.R.D. at

141. Amtrak offers no argument on this point, and the Court

perceives only a minimal burden.

      3.   Deterrence

    The Court may also resort to dismissal when necessary for its

deterrent value. “A discovery sanction imposed for its deterrent

effect ‘must be calibrated to the gravity of the misconduct,’

and courts should avoid ‘pointless exactions of retribution.’”

Id. at 142 (quoting Bonds, 93 F.3d at 808) (alterations

omitted). Deterrence may support a case-dispositive sanction

where, for example, noncompliance with discovery was a strategic

decision. See Founding Church of Scientology, 802 F.2d at 1458

(upholding dismissal as sanction for failure of leader of a

plaintiff-organization to appear for a deposition based in part

upon “substantial evidence tha[t] the arrangement by which

Hubbard could communicate with the Church only at his initiative

was in fact designed to shield Hubbard from legal process”).

    Amtrak asserts that the deterrent value of lesser sanctions

would be insufficient because “if Guerra and Whitesides are not

dismissed, it essentially allows Plaintiffs to pick and choose


	                                12
which declarants should be deposed, depending on the strength

and veracity of their claims.” Reply at 4. This overstates the

misconduct that is actually at issue. No evidence has been

proffered to suggest that plaintiffs’ counsel or any other

plaintiff was involved in the decisions of Guerra and Whitesides

not to appear. A different result might be warranted if the

record permitted the Court to infer that the failure to appear

was due not to the reasons given, but to a strategic decision.

    That is not to approve of either plaintiff’s actions. There

were ways to address Mr. Guerra’s concern without violating his

duty to appear for a properly noticed deposition. Had he

expressed concerns in advance, his counsel could have sought to

reach an agreement with Amtrak regarding additional protections,

moved for a protective order, or otherwise assuaged his

concerns. Although Mr. Whitesides’s first failure to appear is

eminently understandable—he suffered a death in the family the

evening before his deposition was scheduled and promptly

notified his lawyer—his second failure to appear is unexplained.

Mr. Guerra’s failure to appear and Mr. Whitesides’s second

failure to appear warrant a sanction to deter similar conduct in

the future. Consistent with the Court’s duty to “consider

whether lesser sanctions would be more appropriate for the

particular violation,” Bonds, 93 F.3d at 808, the Court

concludes that deterrence is served by: (1) striking the


	                                13
declarations of Guerra and Whitesides; and (2) a partial award

of expenses, as discussed below.

    B.   The Court Will Award Some Expenses.
	
    Rule 37 requires the Court to order “the party failing to act,

the attorney advising that party, or both to pay the reasonable

expenses, including attorney’s fees, caused by the failure,

unless the failure was substantially justified or other

circumstances make an award of expenses unjust.” Fed. R. Civ. P.

37(d)(3). Plaintiffs bear the burden of proving that their

failure was “substantially justified” or that circumstances

render an award “unjust.” See Novak v. Wolpoff & Abramson LLP,

536 F.3d 175, 178 (2d Cir. 2008). Plaintiffs argue that an award

of expenses would be unjust because “[n]either Guerra nor

Whitesides have the personal financial resources to pay.” Opp.

at 4; see also Flemming Decl. ¶ 15 (“both Mr. Guerra and Mr.

Whitesides have limited financial means and would be unable, or

it would be a hardship for them, to pay Amtrak’s attorneys’ fees

or costs”). They therefore suggest an award of only the costs

attributable to the court-reporter cancellation fees. See Opp.

at 4. Amtrak subsequently advised the Court that those fees have

been waived. See Reply at 4.3


																																																								
3 As a preliminary matter, the Court finds that Mr. Whitesides’s

failure to appear on May 2, 2012 was substantially justified.
Mr. Whitesides suffered a death in the family the evening prior
to the day of his deposition and promptly notified his counsel


	                                14
    The Court begins with the proposition that “[a] flat per se

policy against the imposition of sanctions under . . . Rule 37

upon any party who is financially indigent does not accord with

the purposes of that rule and would open the door to many

possible abuses.” Bosworth v. Record Data of Md., Inc., 102

F.R.D. 518, 521 (D. Md. 1984). Such a holding would grant a

party carte blanche to abuse the discovery process. Nonetheless,

a party’s inability to pay a sanction is a factor that the Court

may consider. See id. (“[T]here may well be situations in which

financial indigency will tilt against the imposition of Rule 37

sanctions.”); Marez v. Chilton, No. 06-05028, 2007 WL 2947471,

at *1 (N.D. Cal. Oct. 9, 2007) (monetary sanction not warranted

where a plaintiff’s “Application to Proceed In Forma Pauperis

suggests that she is not able to pay sanctions in any amount.”).

    In this case, declining to award any expenses would leave

largely unpunished the unacceptable behavior of two plaintiffs

who voluntarily invoked this Court’s authority by joining this

lawsuit. Striking their declarations will cure any prejudice to

Amtrak, but carries a relatively minimal deterrent value as

there remain 100 other declarations in support of class

certification. Accordingly, the Court concludes that a monetary


																																																								
who promptly notified Amtrak’s counsel. The Court declines to
penalize Mr. Whitesides for such reasonable behavior and
therefore looks only to Mr. Guerra’s June 7 failure to appear
and Mr. Whitesides’s May 23 failure to appear.


	                                15
sanction is appropriate to deter future discovery violations—

both by Guerra and Whitesides and by others.

    The Court does not have an appropriate record on which to

decide precisely what monetary sanction to award, however.

Plaintiffs assert that Guerra and Whitesides “would be unable,

or it would be a hardship for them, to pay Amtrak’s attorneys’

fees or costs.” Flemming Decl. ¶ 15. This vague disjunctive

statement is not sufficiently detailed to assist the Court in

balancing the need to fashion a sanction that would provide

appropriate deterrence against the need to avoid being unjustly

punitive. Amtrak asks for all costs and attorneys’ fees

regarding the deposition preparation and litigation of this

motion, but did not provide an accounting of these fees and

costs. Accordingly, the Court holds only that Rule 37(d)

requires that the Court award at a minimum the non-attorney-fee

costs attributable directly to the May 23 and June 7

depositions. After the parties submit pleadings with

sufficiently detailed information to permit the Court to fashion

an award that is both reasonable and proportional, the Court

will decide whether this award is sufficient, or whether an

award of some portion of the attorneys’ fees attributable to the

May 23 and June 7 depositions and the litigation of this motion

is also warranted.




	                                16
III. Conclusion

     For the foregoing reasons, the Court GRANTS IN PART AND DENIES

IN PART Amtrak’s motion for exclusion of plaintiffs Guerra and

Whitesides and for related costs. An appropriate Order

accompanies this Memorandum Opinion.

     SO ORDERED.

    Signed:   Emmet G. Sullivan
              United States District Judge
              May 4, 2015




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