Bailey v. First Transit Inc.

Background

Jeffrey L. Bailey and Marlon E. Carter brought several claims against First Transit, including claims under the National Transit Systems Security Act (NTSSA), Title VI of the Civil Rights Act, the False Claims Act, 42 U.S.C. § 1981, and Minnesota statutes. The court had previously dismissed all claims except the NTSSA claim.

First Transit notified the plaintiffs in October 2021 and again in January 2022 that it wanted to take their oral depositions. The plaintiffs requested “paper depositions” instead and did not confirm whether they would attend. First Transit postponed the first depositions, later sent additional notices and reminders, and appeared at the court reporter’s office for the February 2022 depositions. The plaintiffs did not attend either deposition.

The plaintiffs were representing themselves. The court had previously warned them that representing themselves did not excuse compliance with court rules, laws, or orders.

Reasoning

Federal Rule of Civil Procedure 37(d) allows a court to impose sanctions, including dismissal, when a properly notified party fails to appear for a deposition. The court explained that a party generally cannot refuse to attend because it objects to the discovery unless it has a pending request for a protective order under Rule 26(c).

The court found that the plaintiffs received proper notice, were given multiple opportunities to attend, and were repeatedly asked to confirm their attendance. Their request for paper depositions did not excuse their failure to appear because First Transit had requested oral depositions as permitted by the federal rules. The plaintiffs did not file a request for a protective order and did not explain their absences.

The court also rejected the plaintiffs’ argument that First Transit first had to file a motion to compel. It stated that Rule 37(d) does not require a prior motion to compel before a case may be dismissed for failing to attend a deposition.

Ruling

The court granted First Transit’s motion to dismiss. It dismissed with prejudice Jeffrey L. Bailey and Marlon E. Carter’s NTSSA claim against First Transit. “With prejudice” means the claim cannot be refiled in that case.

The court also found that the plaintiffs were not substantially justified in missing the depositions. It awarded First Transit reasonable expenses for the two missed depositions and the attorney’s fees incurred in bringing the motion. First Transit was ordered to file a detailed accounting of those costs and fees within fourteen days.

First Transit’s alternative motion to compel, its separate motion to compel, and the listed pending motions were denied as moot. The court directed that judgment be entered.