Class Action Plaintiffs’ Failure to Appear at Deposition Deemed Not Prejudicial Enough for Dismissal

Carlton Fields
Contact


In a class action brought against Amtrak, two plaintiffs, Guerra and Whitesides, both of whom had submitted declarations in support of plaintiffs’ motion for class certification, failed to appear at their scheduled depositions. Defendants sought an award of costs and fees and, in addition, the dismissal with prejudice of the legal claims of Guerra and Whitesides, arguing that only a dismissal would remedy the misconduct and prevent plaintiffs’ counsel from picking and choosing which declarants should be deposed depending on the veracity of their claims.

The court declined to dismiss the claims under Rule 37: the prejudice to Amtrak, the court said, lay in the costs it incurred preparing for the depositions and its inability to examine Guerra and Whitesides. But this prejudice was remediable with the lesser sanction of striking the Guerra and Whitesides declarations, as well as awarding partial expenses. The failure to appear at deposition, said the court, did not “irrevocably damage [Amtrak’s] ability to prove its case.” The court also saw no need to dismiss the claims as a deterrent, since there was no proof that Guerra and Whitesides’ failure to appear at deposition was strategic.

Campbell v. Nat’l Railroad Passenger Corp., No. 99-2979 (D.D.C. May 4, 2015).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

PUBLISH YOUR CONTENT ON JD SUPRA NOW

  • Increased visibility
  • Actionable analytics
  • Ongoing guidance

Carlton Fields on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide