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Cannon v. Southern University Board of Supervisors

United States District Court, M.D. Louisiana

April 12, 2019

SHABOYD PIERRE CANNON
v.
SOUTHERN UNIVERSITY BOARD OF SUPERVISORS

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendants' Motion for Sanctions and Dismissal (R. Doc. 64) filed on October 30, 2018. Plaintiff filed his Responsive Memorandum for Sanctions (R. Doc. 65) on November 19, 2018. The matter was referred to the undersigned for adjudication on March 27, 2019. (R. Doc. 68).

         I. Factual Background

         Plaintiff, Shaboyd Pierre Cannon, initiated this litigation with the filing of his Complaint (R. Doc. 1) on August 8, 2017. Plaintiff's First Amended Complaint (R. Doc. 19) was filed on December 7, 2017. Therein, Plaintiff seeks declaratory and injunctive relief for alleged violations of his “due process rights, liberty interest, and equal protection rights under the 14th Amendment to the U.S. Constitution, including a Preliminary Injunction ordering his re-admission to Southern University Law Center for the Spring 2018 Semester with full rights and privileges as a student in good standing.” (R. Doc. 19 at 3).

         Defendants seek sanctions of attorney's fees and costs, and up to and including dismissal of Plaintiff's action “for the blatant failure to cooperate and participate in discovery on multiple fronts as required by this Court in prior orders.” (R. Doc. 64 at 1). Specifically, Defendants allege that sanctions are appropriate as a result of Plaintiff's failure to cooperate at his own deposition, his failure to respond to Defendants' Requests for Admission, and his failure to appear and take depositions noticed by him, each of which will be addressed individually.

         II.

         Law and Analysis

         A. Legal Standard

         Under Fed.R.Civ.P. 30(d)(2), the “court may impose an appropriate sanction- including the reasonable expenses and attorney's fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent.”[1] “the meaning of ‘appropriate sanction' in Rule 30(d)(2) has been broadly interpreted, ” and it has been noted that “'[t]he full scope of sanctions available under Rule 30(d)(2) is not expressly described in the text of the rule.'” Howell v. Avante Services, LLC, 2013 WL 824715, at *5 (E.D. La. Mar. 6, 2013) (citing Glick v. Molloy, 2013 WL 140100, at *2 (D. Mont. Jan. 10, 2013)).

         Additionally, Fed.R.Civ.P. 30(g) provides that “[a] party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to: (1) attend and proceed with the deposition…”

         The Court previously advised the parties, by way of Order dated September 25, 2018, “that if the Court finds that any person impedes, delays or frustrates the fair examination of the deponent, or that any discovery is being conducted in bad faith or unreasonably annoys, embarrasses or oppresses the deponent or any party, the Court will consider appropriate sanctions pursuant to Rule 30(d)(2) and (3) of the Federal Rules of Civil Procedure, including the reasonable expenses and attorney's fees incurred by any party.” (R. Doc. 60 at 2).

         B. Plaintiff's Deposition

         Plaintiff's deposition was scheduled for 2:00 p.m. on October 16, 2018, and commenced at 2:11 p.m. (R. Doc. 64-2 at 2). Prior to the taking of Plaintiff's deposition, Defendants sought court approval for the deposition to take place at the United States District Court for the Middle District of Louisiana by way of Motion (R. Doc. 58) dated September 21, 2018. The Court granted Defendants' Motion in an Order (R. Doc. 60) dated September 25, 2018. In that Order, the parties were advised that “if the Court finds that any person impedes, delays or frustrates the fair examination of the deponent, or that any discovery is being conducted in bad faith or unreasonably annoys, embarrasses or oppresses the deponent or any party, the Court will consider appropriate sanctions pursuant to Rule 30(d)(2) and (3) of the Federal Rules of Civil Procedure, including the reasonable expenses and attorney's fees incurred by any party.”

         Defendants argue that sanctions are warranted based on Plaintiff's participation (or lack thereof) in his own deposition. (R. Doc. 64-1 at 2). In support of this argument, Defendants allege that Plaintiff “consistently refused to identify, examine, properly respond, or address the questions or documents presented or even look at the documents presented to him, ” and that his “responses, or lack thereof, were bizarre, refusing to turn over pages, identify his own signature, making faces and gesturing with arms while remaining silent, referenced in the deposition as no response and refusing to answer direct questions on which he had knowledge.” (R. Doc. 64-1 at 2). Plaintiff argues in Response that counsel for Defendants “attempt[ed] to ‘unreasonably annoy' Plaintiff by use of redundantly submitted documents.” (R. Doc. 65 at 4). He further posits that he “truthfully did not know whether items presented at deposition were altered or the same as previously offered by Plaintiff himself.” (R. Doc. 65 at 6).

         The Court has reviewed in detail the deposition transcript submitted by Defendants. Plaintiff's evasive responses were not limited to questions regarding the authenticity of documents presented. Instead, Plaintiff failed to give clear answers to even simple questions about his own academic history or his current address, refused to read portions of documents presented to him, and of 345 recorded answers, 144 of those answers was “Not sure.”

         By way of illustration, Plaintiff responds “Not sure” to what school he attended after Morehouse (R. Doc. 64-2 at 23), whether several excerpts read aloud to him are accurate readings of documents presented to him (R. Doc. 64-2 at 16, 17, 18), whether he's had criminal charges and whether he's registered with the Selective Service (R. Doc. 64-2 at 22-23), whether a signature on a document is his own (R. Doc. 64-2 at 50), whether he applied to become a lawyer in the state of Georgia once he graduated from law school (R. Doc. 64-2 at 59), whether he would consider grades of “D, D-minus, D-minus, D-minus, D, F, D-plus, D, F” to be “good grades” (R. Doc. 64-2 at 62), the identity of his first attorney (R. Doc. 64-2 at 74), whether he filed his lawsuit on August 8, 2017 (R. Doc. 64-2 at 79), and whether the words on the shirt he was wearing at that moment were “Shaboyd Pierre Cannon, Esquire” (R. Doc. 64-2 at 81). Perhaps most notably, Plaintiff responds “Not sure” to whether his admission to Southern University Law Center was revoked, which is the alleged wrong that forms the basis of Plaintiff's request for declaratory and injunctive relief. (R. Doc. 64-2 at 39).

         As noted above, and as shown through the foregoing examples, Plaintiff's frequent and repeated response of “Not sure” was not limited to questions regarding the identification or authentication of certain documents. Plaintiff responded “Not sure” to many questions that were undoubtedly within his personal knowledge, or easily accessible by way of documents presented to him in deposition. His failure to definitively respond to relevant and appropriate inquiries regarding information or documents before him at that moment indicates a refusal to participate in the process, not the uncertainty Plaintiff suggests.

         There are other indicators in the deposition transcript, beyond the Court's view of his “Not sure” responses, that further the Court's finding that Plaintiff simply refused to properly participate in his deposition. For example, Plaintiff was read an excerpt from a document and asked whether he recalled making the argument therein and providing it. (R. Doc. 64-2 at 45-46). The stenographer recorded a response of “(Indicating.)”, suggesting that Plaintiff made some sort of visual gesture, and counsel responded, “No, I do not wish a mint, sir.” (R. Doc. 64-2 at 46). Rather than answer the question, Plaintiff offered counsel a mint. Later, defense counsel presented a series of questions regarding the identity of certain online users commenting on a discussion forum, Plaintiff asked whether he could say something, defense counsel responded that he could answer yes or no as to whether he knows them, and Plaintiff responds, “Roll Tide.” (R. Doc. 64-2 at 73). In another instance, Plaintiff refused to cooperate with defense counsel's request to view a document, wherein the following exchange occurred:

Q: Please look at packet Exhibit Number 9 which has a large sequence of documents submitted by you and your attorney to the board of supervisors for their October 23rd meeting.
Please open the packet.
Please open the packet.
Please open the packet sir, so that you can look at the summary statement ...

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