ORDER GRANTING DEFENDANT TIRRELL PAYTON'S EX PARTE MOTION TO COMPEL

WILLIAM V. GALLO, Magistrate Judge.

Pending before the Court is Defendant Tirrell Payton's ex parte motion to compel the deposition of Plaintiff in San Diego, which the Court authorized to be filed on an ex parte basis. (Doc. No. 102.) Plaintiff filed an opposition. (Doc. No. 103.) The Court finds the matter suitable for decision without oral argument and GRANTS the motion.1

On June 25, 2018, Payton noticed Plaintiff's deposition for August 22, 2018 in San Diego, California. Plaintiff's counsel provided Payton's counsel notice of non-attendance two days before the scheduled deposition. Plaintiff resides in Joplin, Missouri and did not attend the deposition. The fact discovery deadline in this case passed on August 22, 2018 without any extension requests. Payton now moves to compel Plaintiff's deposition and asks that it proceed in San Diego, California. All counsel are located either in San Diego or the Southern California region.

During meet and confer emails, Plaintiff requested that Payton provide authority for taking his deposition in San Diego rather than Missouri. Notwithstanding the requests, Plaintiff never directly opposed sitting for deposition in San Diego, stating only that it would be "inconvenient." Plaintiff has now unequivocally agreed to appear in San Diego for his deposition—but in September, after fact discovery has concluded. In his opposition to Payton's ex parte motion, he contends that location of the deposition is moot since he has agreed to travel to San Diego.2 (Doc. Nos. 103 at 3 ("In e-mail communications between counsel for Plaintiff and counsel for Defendant on August 22, 2018, counsel for Plaintiff agreed to produce Plaintiff for deposition in San Diego in September. Such agreement was reiterated in several phone conversations between counsel for Plaintiff and counsel for Defendant. Defendant's contentions in the Ex Parte Application as to the proper location for the deposition to occur are therefore moot.") (citations omitted); 103-1 at ¶ 4 ("Subsequently, in phone conversations leading up to and around August 22, 2018, and in emails that day, we agreed to produce Plaintiff for a deposition location in San Diego. This offer was affirmed in e-mails between me and counsel for Defendant Tirrell Payton.").

The Court need not decide whether Payton could have compelled Plaintiff's deposition in San Diego. Given Plaintiff's commitment to travel here, the Court agrees that the proper location for Plaintiff's deposition is San Diego and would have so found.3 Given that this dispute was properly presented to the Court and was presented within the fact discovery period, the Court further finds it proper to grant Tirrell Payton relief from the fact discovery deadline for the specific and limited purpose of taking Plaintiff's deposition. The discovery deadline is accordingly extended to September 14, 2018 for the limited purposes of the object of this Order.

Plaintiff is ORDERED to appear in San Diego County and sit for a deposition that must be complete no later than September 14, 2018. Payton's request for sanctions is DENIED without prejudice. However, Plaintiff is cautioned that failure to appear as ordered herein may result in the issuance of sanctions up to and including a recommendation for termination of his case. Fed. R. Civ. P. 37(d)(3).

IT IS SO ORDERED.