United States District Court, S.D. Illinois
October 5, 2005.
DONNOAL O. VASSER, Plaintiff,
A. WYDECK, et al., Defendants.
The opinion of the court was delivered by: DONALD WILKERSON, Magistrate Judge
This matter is before the Court on the Motion for Sanctions
filed by the defendants, A. Wydeck, M. Held, K. Bush, and J.
Vineyard, on September 21, 2005 (Doc. 25) and the Motion for
Extension of Time filed by the Defendants on October 3, 2005
(Doc. 26). The motion for sanctions is DENIED WITHOUT PREJUDICE
and the motion for extension of time is GRANTED.
The Plaintiff initially filed this lawsuit while he was
incarcerated at the Big Muddy River Correctional Center located
in Ina, Illinois (in this District). He then was transferred to
the Pontiac Correctional Center and has since been released. The
Plaintiff is currently residing in Chicago, Illinois (Doc. 8). On
April 15, 2005, the Plaintiff mailed a letter to chambers seeking
to change venue and to transfer this case to the Northern
District of Illinois (Doc. 15). That "motion" was stricken as it
did not comply with the Federal Rules of Civil Procedure (Doc.
17). The Plaintiff has not again sought to change venue.
On September 9, 2005, the Defendants issued a notice to the
Plaintiff scheduling his deposition for September 16, 2005 (Doc.
25, Ex. A). Prior to the deposition, the Plaintiff telephoned
Defense counsel and indicated that he would be unable to attend
on that date. The deposition was rescheduled to September 20, 2005 (Doc. 25, Ex.
B). The Plaintiff again telephoned Defense counsel and indicated
that he would be unable to attend on the 20th. In both messages,
the Plaintiff indicated that he lacked sufficient funds to travel
to Springfield, Illinois, where the depositions were scheduled.
The discovery deadline in this case was September 20, 2005.
Dispositive motions were to be filed by October 3, 2005.
Federal Rule of Civil Procedure 30(a) provides that a
deposition may be taken of any person or party. Rule 30(b)
specifies the procedure that must be employed: a party must give
reasonable notice to the party to be examined and shall state the
time and place of the deposition, among other things. Rule 30
does not place a limit on the location of the deposition with
respect to a party; however, the location of a deposition of a
non-party is limited by this Court's subpoena power pursuant to
Rule 45.*fn1 Rule 37(d) provides that the Court may sanction
a party for failing to attend his deposition. Such sanctions can
include the striking of a pleading, prohibiting the Plaintiff
from testifying at trial, or dismissing a lawsuit. The
Defendants, therefore, can properly seek sanctions, like barring
the Plaintiff from testifying at trial, for his failure to appear
at two scheduled depositions.
However, the Court is mindful that the Plaintiff is proceeding
pro se and in forma pauperis. He has been released from
prison and is now living in Chicago, Illinois. He also has
indicated to the Defendants that he is financially unable to
travel to Springfield, Illinois. The interests of justice would
not be served by completely barring the Plaintiff from testifying
at trial because he cannot afford to travel in order for his deposition to
be taken. The Defendants in this case are represented by the
Illinois Attorney General who has offices in Chicago. While it
may be relatively more expensive for the Defendants to take the
Plaintiff's deposition in Chicago (rather than Springfield), such
an expense does not, in this limited circumstance, outweigh the
need for the Plaintiff's deposition to be taken. Therefore, even
though the Plaintiff has not so requested, the Court will give
some him latitude (again, in this one instance) and require the
Defendants to take his deposition in the Attorney General's
Chicago offices (or any other location in Chicago that the
Defendants believe will be convenient).
Therefore, the Plaintiff is ORDERED to appear for his
deposition at the date and time designated by the Defendants. The
deposition SHALL occur at the Chicago offices of the Attorney
General (or any other location in Chicago that the Defendants
believe will be convenient). The deposition SHALL be taken by
October 28, 2005. The discovery deadline in this case is
EXTENDED to October 28, 2005 for the limited purpose of the
taking of the Plaintiff's deposition. The Dispositive motion
filing deadline is RESET to December 16, 2005, or 45 days from
the taking of the deposition, whichever is sooner.
The Plaintiff is WARNED that if he fails to appear at the
date AND time of the scheduled deposition, he will be BARRED
from testifying at trial and from presenting his own affidavits
in response to any motion for summary judgment filed by the
Defendants. The Court also reminds the Plaintiff that this
matter, if it is scheduled for trial, will be set for trial in
East St. Louis. The Plaintiff will be under an obligation to
travel to East St. Louis if this matter is scheduled for trial.
Finally, the Court also notes from the Plaintiff's filings, the
most recent of which was a motion for appointment of counsel, that he is not serving the
Defendants with documents filed with the Clerk. The Plaintiff is
again reminded that he MUST serve the defendants with every
document that the mails to the clerk of court. The failure to do
so SHALL result in the striking of any such document.
For the foregoing reasons, the Motion for Sanctions filed by
the defendants, A. Wydeck, M. Held, K. Bush, and J. Vineyard, on
September 21, 2005 is DENIED WITHOUT PREJUDICE (Doc. 25) and
the Motion for Extension of Time filed by the Defendants on
October 3, 2005 is GRANTED (Doc. 26).
© 1992-2005 VersusLaw Inc.