ORDER COMPELLING DEPOSITIONS OF PLAINTIFFS SMITH AND JOVEL; GRANTING MOTION FOR SANCTIONS AS TO PLAINTIFFS SMITH AND JOVEL [Re: ECF 87]

BETH LABSON FREEMAN, District Judge.

Before the Court is Defendant Santa Clara Valley Transportation Authority's ("Defendant") Motion for Dismissal with Prejudice of Plaintiffs Smith, Williams, Cadimas-Rosa, Jovel, and Gomez ("Plaintiffs") and/or Sanctions. Mot., ECF 87. These five plaintiffs are bus operators either employed or formerly employed by Defendant and compose part of the larger group of plaintiffs in this matter. Id. at 3. Defendant requests dismissal or sanctions due to Plaintiffs' failure "to appear for [noticed] depositions." Id. at 2-3.

Prior to the motion hearing ("Hearing") on October 4, 2018, Defendant withdrew Plaintiff Williams from the motion, see ECF 95, and the parties stipulated to dismiss with prejudice Plaintiff Gomez from the action, see ECF 96. In addition, on the record at the motion hearing on October 4, 2018, the parties agreed that Plaintiff Cadimas-Rosa would be voluntarily dismissed with prejudice from the action, without sanctions, per subsequent filing. Thus, the Court's present order concerns only Plaintiffs Smith and Jovel.

I. PLAINTIFF SMITH

Defendant asserts that it properly noticed Plaintiff Smith ("Smith") for deposition, and that Smith (through her attorney) claimed she was unable to attend the scheduled deposition, and did not provide alternative dates, despite repeated offers by Defendant. Mot. at 2. Counsel for plaintiff notes that Smith lives in Las Vegas, Nevada, and that she only worked for Defendant for a few days. Opp. at 3, ECF 88. On the record at the Hearing, counsel for plaintiff further indicated that Smith had moved to a new address in the Las Vegas area.

As stated on the record at the Hearing, the Court declines to dismiss Plaintiff Smith from the case. Defendant has not demonstrated that Smith engaged in "repeated and flagrant" discovery abuses that would warrant dismissal. See Henry v. Gill Industries, Inc., 983 F.2d 943, 946 (9th Cir. 1993). However, the Court hereby COMPELS the deposition of Plaintiff Smith, to take place telephonically on Tuesday, October 9, 2018, with Plaintiff Smith to appear at a location within a reasonable distance of her place of residence, not to exceed 50 miles. In addition, as stated on the record at the Hearing, the Court hereby AWARDS sanctions for attorney's fees against Plaintiff Smith in the amount of $600, for failure to appear at the previously noticed deposition and failure to reasonably participate in discovery. See also Defendant's Decl. ¶ 20 (outlining costs to Defendant), ECF 87-1. Said sanctions are due and payable to Defendant Santa Clara Valley Transportation Agency within 14 days.

If Plaintiff Smith fails to appear at the deposition on October 9, 2018, absent withdrawal from the case or justifiable excuse, the Court may consider dismissal or further sanctions. Counsel for plaintiff is to provide Smith with written notice of the Court's present order and Smith's upcoming deposition on October 9, 2018. If counsel for plaintiff is unable to contact Smith, counsel for plaintiff is directed to notify Defendant no later than 24 hours prior to the deposition start time on October 9, 2018.

II. PLAINTIFF JOVEL

Defendant also asserts that it properly noticed Plaintiff Jovel ("Jovel") for deposition, and that Jovel (through her attorney) claimed she was unable to attend the scheduled deposition, and did not provide alternative dates, despite repeated offers by Defendant. Mot. at 2. Jovel has indicated that she may wish to withdraw from the lawsuit. Id. However, on the record at the Hearing, counsel for plaintiff noted that there has been no contact with Jovel since prior to Defendant's filing of the present motion.

The Court declines to dismiss Plaintiff Jovel from the case. Defendant has not demonstrated that Jovel engaged in "repeated and flagrant" discovery abuses that would warrant dismissal. See Henry, 983 F.2d at 946. However, the Court hereby COMPELS the deposition of Plaintiff Jovel, to take place telephonically on Tuesday, October 9, 2018. In addition, as stated on the record at the Hearing, the Court hereby AWARDS sanctions for attorney's fees against Plaintiff Jovel in the amount of $600, for failure to appear at the previously noticed deposition and failure to reasonably participate in discovery. See also Defendant's Decl. ¶ 20 (outlining costs to Defendant), ECF 87-1. Said sanctions are due and payable to Defendant Santa Clara Valley Transportation Agency within 14 days.

If Plaintiff Jovel fails to appear at the deposition on October 9, 2018, absent withdrawal from the case or justifiable excuse, the Court may consider dismissal or further sanctions. Counsel for plaintiff is to provide Jovel with written notice of the Court's present order and Jovel's upcoming deposition on October 9, 2018. If counsel for plaintiff is unable to contact Jovel, counsel for plaintiff is directed to notify Defendant no later than 24 hours prior to the deposition start time on October 9, 2018.

III. CONCLUSION

For the foregoing reasons, the Court rules as follows:

IT IS SO ORDERED.