The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs have moved the Court to sanction the defendant and his attorney due to the defendant's failure to appear for his deposition. For the reasons stated below, the Court agrees with plaintiffs that a proper basis to impose a severe sanction exists but will give the defendant one final opportunity to appear for his deposition as previously ordered.
To understand the motion and the Court's ruling, some background regarding the history of the case is required.
The defendant, Abdusalami Abubakar, is a former member of the military regime that ruled Nigeria from November 1993 to May 1999. The plaintiffs are Nigerian citizens who were allegedly tortured, or whose parents were allegedly tortured, at Abubakar's behest because they criticized the military regime while it was in power. They have sued Abubakar under the Alien Tort Claims Act (ATCA), 28 U.S.C. § 1350, and the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note § 2(a). The case has been the subject of a number of written decisions by this Court, as well as one decision by the Court of Appeals on an interlocutory appeal.
Plaintiffs originally filed the case in the Eastern District of Michigan in February 2001. In early April 2001, plaintiffs asked the Clerk of that court to enter Abubakar's default pursuant to Rule 55(a), saying that he had been served with summons and the complaint at Chicago State University in Chicago on February 23, 2001 but had not responded. The Clerk entered Abubakar's default.
Later in April 2001, plaintiffs moved for entry of a default judgment against Abubakar. In response, Abubakar moved to set aside the Clerk's earlier entry of default, saying that although he had been in Chicago on February 23, 2001, he "did not receive service of process" but only heard about the case after he returned to Nigeria. See Motion to Set Aside the Clerk's Entry of Default (filed Apr. 26, 2001). He also moved for leave to file a late answer. Judge Bernard Friedman, who was presiding over the case, granted the latter motion in June 2001 and thus denied plaintiffs' motion for a default judgment. In October 2001, the judge entered an order directing the parties to complete discovery by April 15, 2002.
Plaintiffs eventually moved again for entry of a default judgment against Abubakar, saying that he had refused to make himself available for a deposition. Judge Friedman granted this motion on March 1, 2002. His order stated:
Plaintiffs first noticed [Abubakar's] deposition for October 10, 2001. Defendant failed to appear. Plaintiffs obtained this court's order requiring defendant to appear for deposition on January 23, 2002. Again, defendant failed to appear. The court immediately conducted a hearing. Defense counsel assured the court, and opposing counsel, that defendant would appear for deposition on February 11, 2002. The court admonished defendant, through his attorney, that the court would consider entering a default judgment against him if he failed to appear on the rescheduled date. On February 11, 2002, defendant once again failed to appear for his deposition.
Order of Mar. 1, 2002. The court entered a default judgment against Abubakar pursuant to Rule 37(b)(2)(C).
Abubakar was, however, given a reprieve as a result of ensuing events. He moved for reconsideration of the entry of default judgment, arguing among other things that personal jurisdiction was lacking over him in Michigan. On April 25, 2002, Judge Friedman granted Abubakar's motion for reconsideration, vacated the default judgment, and dismissed the claims against Abubakar for lack of personal jurisdiction.
Plaintiffs then moved for reconsideration, attaching, among other things, a color photograph that showed Abubakar reading the complaint at Chicago State University. Judge Friedman granted plaintiffs' motion in part, deciding to transfer the case to this District pursuant to 28 U.S.C. § 1406(a) rather than dismiss it outright. See Order of July 17, 2002 at 9 ("the usual procedure should be transfer rather than dismissal").
Following transfer of the case to this Court, the Court held a status hearing in October 2002, during which Abubakar's counsel stated that he intended to move to dismiss plaintiffs' amended complaint. Plaintiffs objected that certain issues that Abubakar might raise had been ruled upon in Michigan or waived. The Court nonetheless set a briefing schedule, saying that it would decide what issues were appropriately raised if and when Abubakar filed his motion to dismiss.
Instead of moving to dismiss, however, Abubakar filed a motion asking the Court to rule that plaintiffs had to re-serve him with summons because the case had been transferred. The Court denied that motion on January ...