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Lopez v. Whirlpool Corporation

United States District Court, N.D. Iowa, Cedar Rapids Division

February 26, 2019

HEATHER LOPEZ, Plaintiff,
v.
WHIRLPOOL CORPORATION, Defendant.

          ORDER

          Mark A. Roberts, United States Magistrate Judge.

         This matter is before the Court on Defendants' Motion for Sanctions Against Plaintiff's Counsel, to Compel Plaintiff's Deposition, and to Extend Deadlines. (Doc. 24.) Plaintiff timely filed a resistance. (Doc. 25.) For the following reasons, Defendant's motion is GRANTED IN PART and DENIED IN PART.

         I. FACTUAL BACKGROUND

         This is an action alleging unlawful employment practices in violation of Title VII and the Iowa Civil Rights Act. Discovery closed on February 8, 2019. The dispositive motion deadline was February 11, 2019. Trial will begin on July 15, 2019.[1]

         Defendant's motion details the difficulties it has faced in attempting to depose Plaintiff. These difficulties included lack of communication by Plaintiff's counsel, last-minute changes to the schedule, and overall lack of urgency in pursuing discovery in accordance with the Court's trial setting order. Ultimately, Defendant's counsel traveled to Iowa twice unsuccessfully for the purpose of deposing Plaintiff. Plaintiff's counsel seeks refuge in inclement weather, health concerns, and other professional commitments in January and February of 2019. I am not unsympathetic to any of these reasons for postponing a deposition. However, Plaintiff's response ignores the fact that the fall of 2018 was wasted largely due to his unresponsiveness and failure to cooperate in scheduling. In October and November of 2018, Plaintiff's counsel was first unresponsive and then unwilling to commit to depositions because of other matters, despite the impending close of discovery.

         Defendant's counsel traveled to Iowa on January 21, 2019 for Plaintiff's deposition. On January 22, 2019, Plaintiff's counsel cancelled the deposition just as it was scheduled to commence. Defendant's counsel attempted to schedule Plaintiff's deposition for January 24. Plaintiff's counsel initially agreed to that date, but then cancelled the next day. Defendant's counsel traveled to Iowa again on January 28 to depose Plaintiff on January 30. Plaintiff's counsel unilaterally cancelled the deposition on January 29. Plaintiff's counsel attributed this cancellation to Plaintiff's difficulty in arranging childcare for sick children and the cold weather. On January 29, Plaintiff's counsel was then unable or unwilling to confirm a single day prior to the close of discovery when he would make his client available for deposition that Defendant could rely upon.[2]

         The excuses offered by Plaintiff's counsel might justify a last-minute cancellation. This record, however, shows two expensive, aborted attempts to depose Plaintiff caused by her counsel's last-minute, unilateral decisions and a troubling unwillingness or inability to schedule a single deposition during the discovery period. Plaintiff also engages in some unavailing “whataboutery, ” complaining about Defendant's discovery responses earlier in the case. However, Plaintiff has not filed any motion regarding Defendant's discovery replies and that issue is not before the Court.

         Defendant moves the Court for the following relief:

• Monetary sanctions against Plaintiff's counsel in the amount of $10, 013.71;
• An order compelling Plaintiff's deposition within two weeks of this order; • An order extending the current discovery deadline for the purpose of taking Plaintiff's deposition;
• An order prohibiting Plaintiff from deposing Defendant's witnesses;
• An order extending the dispositive motion deadline to three weeks after Plaintiff's deposition; and
• An order continuing the final pretrial conference and the “trial ready” deadlines.

         II. ...


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