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Laschkewitsch v. Legal & General America, Inc.

United States District Court, E.D. North Carolina, Western Division

March 14, 2017

JOHN LASCHKEWITSCH, Plaintiff,
v.
LEGAL & GENERAL AMERICA, INC., d/b/a BANNER LIFE INSURANCE COMPANY, Defendant.

          ORDER

          JAMES C. DEVER III, Chief United States District Judge

         On June 17, 2016, Banner Life Insurance Company ("Banner" or "defendant") requested sanctions against plaintiff John Laschkewitsch ("Laschkewitsch" or "plaintiff') for failing to appear for his deposition [D.E. 54] and filed a supporting memorandum [D.E. 55]. On July 19, 2016, Laschkewitsch responded in opposition [D.E. 74].[1] On July 20, 2016, Banner replied [D.E. 76]. As explained below, the court grants Banner's motion for sanctions.

         I.

         On April 18, 2016, Banner moved to compel Laschkewitsch's attendance for his deposition [D.E. 45]. On May 25, 2016, the court granted Banner's motion and ordered Laschkewitsch to sit for a deposition at a mutually agreeable time no later than June 17, 2016, at the office of Banner's counsel in Raleigh, North Carolina. See [D.E. 50]. On the day the court issued the order, Banner both mailed and emailed a copy of the order to Laschkewitsch and requested dates he would be available for his deposition. See Smelley Decl. [D.E. 54-1 ] ¶ 2. On June 2, 2016-having received no response from Laschkewitsch-Banner again attempted to contact Laschkewitsch via both mail and email regarding the court's order and requested possible dates for his deposition. Id. ¶¶ 3-4.

         On June 8, 2016, Laschkewitsch responded by email regarding purported discovery disputes, staying discovery, and postponing and changing the location of his deposition "until after further production from Banner, an evidentiary hearing is held, and a signed stipulated protective order between the parties is submitted to the Court." Id. ¶ 5. Laschkewitsch's response did not include possible dates for his deposition. Banner responded that day via email, again including the language of the court's order and asking Laschkewitsch which days the following week were convenient for his court-ordered deposition. 1(116. Rather than provide possible dates, Laschkewitsch responded that he would not appear for his deposition until the court resolved a discovery motion he anticipated filing. Id.

         District courts enjoy broad discretion to impose sanctions for failure to comply with discovery orders. Hinkle v. Citv of Clarksburg. W.Va.. 81 F.3d 416, 426 (4th Cir. 1996). Such sanctions include:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(i)-(vii). Rule 37(b) also specifies that "the court must order the disobedient party, 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 ...


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