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Walton v. First Merchants Bank

United States District Court, S.D. Indiana, Indianapolis Division

February 5, 2019

DEBORA WALTON, Plaintiff,
v.
FIRST MERCHANTS BANK, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SANCTIONS

          MATTHEW P. BROOKMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Defendant, First Merchants Bank, has filed a motion for sanctions against pro se Plaintiff, Deborah Walton, pursuant to Fed.R.Civ.P. 37(d)(1)(A)(i)-(ii) for Ms. Walton's failure to appear for her deposition and pursuant to Fed.R.Civ.P. 37(d)(3) and 37(b)(2)(A)(i)-(iv) for her general lack of cooperation during discovery. (Docket No. 116; Docket No. 117).

         Specifically, Defendant requests attorney's fees related to the prosecution of the instant motion and related to the attendance of Plaintiff's July 10, 2018, deposition, along with defense counsel's travel expenses, and Court costs associated with this motion.

         For the reasons that follow, the undersigned recommends Defendant's Motion for Discovery Sanctions (Docket No. 116) be denied with leave to refile.

         II. Background

         Ms. Walton was served with written discovery on April 13, 2018. (Docket No. 118-1 at ECF p. 1, ¶2). On May 4, 2018, defense counsel served Ms. Walton with a notice of a May 25, 2018, deposition. (Docket No. 118-1 at ECF p. 1, ¶2; Docket No. 118-1 at ECF pp. 7-8).

         On May 15, 2018, defense counsel emailed regarding Ms. Walton's outstanding discovery and her upcoming deposition. (Docket No. 118-1 at ECF p. 2, ¶3; Docket No. 118-1 at ECF pp. 11-15). Defense counsel agreed to change the location of Ms. Walton's deposition after they were informed she was not permitted inside the Stewart Richardson offices. Id. Ms. Walton did not provide an answer regarding her outstanding discovery.

         On May 18, 2018, defense counsel again emailed Ms. Walton regarding her discovery responses. (Docket No. 118-1 at ECF p.1, ¶4; Docket No. 118-1 at ECF pp. 16-21). When no response was received, counsel again emailed on May 21, 2018. Id. Ms. Walton indicated the responses had been mailed and agreed to a deposition date after the June 1, 2018, discovery cutoff. Id.

         Around May 22, 2018, defense counsel received Ms. Walton's discovery responses. (Docket No. 118-1 at ECF p. 1, ¶5; Docket No. 118-1 at ECF pp. 22-23). That same day defense counsel sent a detailed deficiency letter to Ms. Walton regarding her limited document production and interrogatory responses. (Docket No. 118-1 at ECF p. 1, ¶5; Docket No. 118-1 at ECF pp. 24-28). Ms. Walton did not respond. On May 30, 2018, defense counsel again emailed Ms. Walton asking her to supplement her production to address the issues raised in the deficiency letter and other discovery issues. Id.

         On June 1, 2018, Ms. Walton provided additional documents, but defense counsel continued to maintain the supplement was deficient. (Docket No. 118-1 at ECF p. 2, ¶6; Docket No. 118-1 at ECF pp. 29-33). After correspondence, Ms. Walton further supplemented. (Docket No. 118-1 at ECF p. 2, ¶8; Docket No. 118-1 at ECF p. 34-35).[1]

         On June 13, 2018, defense counsel emailed Ms. Walton asking her to confirm a July date that she would be available for a deposition. (Docket No. 118-1 at ECF p. 2, ¶9; Docket No. 118-1 at ECF pp. 36-38). Ms. Walton would not agree to be deposed after June 30, 2018. Id. On June 18, 2018, defense counsel again emailed Ms. Walton regarding her deposition. (Docket No. 118-1 at ECF p. 2, ¶10; Docket No. 118-1 at ECF p. 38).

         On June 22, 2018, after receiving no response from Ms. Walton, defense counsel emailed[2] Ms. Walton a Notice of Deposition and Subpoena Duces Tecum compelling both her presence and the production of documents on July 10, 2018. (Docket No. 118-1 at ECF p. 2, ¶ 11; Docket No. 118-1 at ECF pp. 39-47). On July 9, 2018, defense counsel traveled to Indianapolis for Ms. Walton's deposition. (Docket No. 118-1 at ECF p. 3, ¶11). On July 10, 2018, Ms. Walton failed to appear. Id.[3]

         III. ...


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