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Rogler v. Fotos

United States District Court, D. Maryland

July 23, 2015

EDAR Y. ROGLER, Plaintiff,
v.
ALEXANDRA M. FOTOS et al., Defendants.

REPORT AND RECOMMENDATIONS

STEPHANIE A. GALLAGHER, Magistrate Judge.

Pursuant to 28 U.S.C. ยง 636 and Local Rules 301 and 302, United States District Court Judge William D. Quarles, Jr. ("Judge Quarles") referred this case to this Court for discovery and all related scheduling. [ECF No. 14]. Presently pending is Defendants' Motion to Dismiss Pursuant to Rule 37. [ECF No. 148]. Because Defendants seek a dispositive sanction, this Court has addressed their Motion in the form of a Report and Recommendations to Judge Quarles. Upon review of Defendants' Motion, as well as Plaintiff's Conditional Opposition and her Amended Opposition [ECF Nos. 161, 162], this Court respectfully recommends that Plaintiff be ordered to sit for her deposition, with this Court's law clerk present, within thirty (30) days from the date of Judge Quarles's final order on Defendants' Motion. In the event that Plaintiff does not comply, this Court recommends that this case be dismissed in its entirety.

I. Relevant Background

Defendants' primary contention for dismissal of this case under Federal Rule of Civil Procedure 37(b) stems from Plaintiff's failure to comply with this Court's orders to sit for her deposition with this Court's law clerk present. A discussion of this background is therefore necessary.

In May, 2014, this case was referred to this Court for discovery and related scheduling. [ECF No. 14]. After a series of extensions and stays in the case, see ECF Nos. 25, 58, 66, this Court held a scheduling conference with the parties on December 9, 2014, to discuss an appropriate schedule for the case going forward. Subsequent to the scheduling conference, this Court issued a new scheduling order that, among other things, set a discovery deadline of March 9, 2015. [ECF No. 72]. This Court also issued a letter order summarizing the results of the discussion, in particular, confirming that Plaintiff's deposition would be held in the courthouse on February 4, 2015, and would be monitored by one of this Court's law clerks. [ECF No. 73]. Plaintiff simultaneously objected to and moved to reconsider this order, claiming, among several things, that the presence of this Court's law clerk at her deposition was an improper delegation of judicial authority. [ECF No. 79]. This Court denied Plaintiff's motion to reconsider [ECF No. 93], and Judge Quarles overruled Plaintiff's objection, ordering that: "Judge Gallagher's law clerk is permitted to monitor depositions and meet and confers' [and] Rogler's February 4, 2015 deposition will proceed as scheduled." [ECF No. 95].[1]

In January, 2015, this case was referred to United States Magistrate Judge J. Mark Coulson ("Judge Coulson") for settlement. [ECF No. 90]. Judge Coulson scheduled a settlement hearing for February 4, 2015, to take place before the start of Plaintiff's scheduled deposition. [ECF No. 92]. At the hearing, the parties reached a tentative settlement agreement, which Judge Coulson memorialized in an order partially staying the case until April 6, 2015, pending finalization of the agreement. [ECF No. 110]. Judge Coulson also ordered that if the parties did not reach a final settlement by April 6, 2015, then the stay would be lifted on April 7, 2015, with Plaintiff's deposition to take place in the courthouse on that date. Id. On March 23, 2015, in a follow-up settlement status hearing with Judge Coulson, the parties indicated that they would not be reaching a final settlement. [ECF No. 131].

On March 27, 2015, Plaintiff filed a motion to stay the case for an additional sixty days to accommodate "further settlement negotiations, " which this Court denied on April 1, 2015. [ECF Nos. 139, 141]. This Court ordered, "Judge Coulson's settlement stay expires on April 6, 2015, and Plaintiff must appear for her deposition on April 7, 2015 at 10 a.m. at the Baltimore Federal Courthouse on the eighth floor." [ECF No. 141]. On March 31, 2015, Plaintiff filed an expedited motion for leave and amended motion to extend the stay of proceedings for compliance with the statutory rights of the D.C. Government and automatic stay of bankruptcy, which this Court denied on April 2, 2015. [ECF Nos. 142, 144]. This Court ordered, "[T]he current stay of proceedings will expire on April 6, 2015, and Plaintiff must appear for her deposition on April 7, 2015 at 10 a.m. at the Baltimore Federal Courthouse on the eighth floor." [ECF No. 144]. Upon receipt of Plaintiff's motion to enforce settlement dated April 3, 2015 [ECF No. 145], this Court again ordered that Plaintiff's deposition proceed as scheduled: "Given the history of this case and the difficulties that have been experienced consummating a settlement, unless a final, executed settlement agreement is reached prior to April 7, 2015 at 10 am, Ms. Rogler's deposition will proceed as scheduled." [ECF No. 146].

On April 7, 2015, Plaintiff appeared at the Courthouse, but she immediately objected to the presence of this Court's law clerk, and she also moved to disqualify this Court. See ECF No. 148, Exh. 1. After Plaintiff stated her objections on the record, she asked the law clerk to leave:

Plaintiff: So I'm asking the law clerk to leave. And if she doesn't leave, I'm leaving. Will you please leave?
Law Clerk: I will not leave. It's an order by Judge Gallagher that I stay here. I will not be speaking.
Plaintiff: All right. Thank you. Bye.

Plaintiff then left the Courthouse without answering any deposition questions.

II. Defendants' Motion to Dismiss Pursuant to Rule 37

Defendants now move to dismiss this case pursuant to Rule 37(b) due to Plaintiff's non-compliance with this Court's orders that Plaintiff appear for her deposition on April 7, 2015, with this Court's law clerk present. Def. Mot. 7-8. Plaintiff denies that she failed to comply with any of this Court's orders, since she did "appear" for her deposition on April 7, 2015, but "moved with good cause and in good faith to disqualify The Magistrate Judge Gallagher who was not present, and to the presence of her law clerk as a monitor.'" Pl. Am. Cond. Opp. 2 ...


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