United States District Court, D. South Carolina, Columbia Division
Tysha S. Holmes, Plaintiff,
Dr. Mark T. Esper, Secretary of the Army; Department of the Army, Defendants.
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendants' Motion for
Expenses for Failure to Attend Deposition and Motion to
Compel Deposition (“Motion for Expenses”). ECF
No. 83. Defendants filed this motion on September 4, 2018. On
September 10, 2018, Defendants filed a Motion for Summary
Judgment. ECF No. 84. Plaintiff, who is proceeding pro se,
never filed a response to Defendants' Motion for
Expenses. On the morning of a June 26, 2019 scheduled
hearing, Plaintiff submitted a response that addressed the
Motion for Expenses as well as other issues related to the
Motion for Summary Judgment. ECF No. 114. Having considered
the parties' briefing and argument in the context of this
pro se matter, the court denies Defendants'
Motion for Expenses. ECF No. 83.
discovery deadline in this case was August 27, 2018.
Dispositive motions were due by September 10, 2018. Am.
Scheduling Order, ECF No. 80.
indicate they were only able to communicate with Plaintiff by
mail, making more immediate contact difficult. Defs. Mem. 2.
On July 24, 2018, Defendants noticed Plaintiff's
deposition for August 22, 2018 at the U.S. Attorney's
Office in Columbia, South Carolina; they served Plaintiff
through Federal Express. See Notice and Certificate
of Service, ECF No. 83-4. Defendants arranged for Lt. Col.
Patricia H. Lewis to travel from Ft. Belvoir Virginia to
attend the deposition.
p.m. on August 21, 2018, the night before the deposition was
to take place, Plaintiff faxed to the U.S. Attorney's
Office a document called “Plaintiff's Notice of
Deposition” in which she advised that she “was
never available, or agreed to a date nor method of in person
oral deposition.” ECF No. 83-5. This “Notice of
Deposition” also indicated, in part, the following:
To where an attorney would be available to arrive and
represent plaintiff at defendant's office under unknown
officer's authority with unknown credentials, and has not
disclosed any conflicts of interest. Furthermore intense
personal burden and expense would fall on plaintiff who is
pro se and does not have means to acquire proper legal
representation from an attorney. Which would protect
integrity of plaintiff's rights and protection of
Privileged and Protected Materials.
Rule 26(c)(1) and d(1) requires parties to confer with the
other pertaining to methods, means to conduct discovery such
as depositions. Deposition by written questions sent to
plaintiff is reasonable and more easily agreeable by both
Appellant [Plaintiff] has made it known in previous
disclosures required by Rule 26(a)(1) and (2) her intentions
to depose defendant[s'] key witnesses Patricia Smith,
Carla Laird, General Joseph Caravallho, Lt Cl Marilyn Lazarz,
Dr. Bimson, Col Nancy Hughes, Johnny Jones. Please send three
dates those persons can be deposed at neutral location such
as Lexington County library conference room in West Columbia,
SC. Also please confirm that the defendant agency by default
of employing Army officers and civil employees, incurs all
and any expenses related to their participation.
ECF No. 83-5.
counsel did not receive the faxed document from Plaintiff
until after counsel and the court reporter were in the U.S.
Attorney's Office awaiting Plaintiff. In the Motion for
Expenses, Defendants seek reimbursement of costs totaling
$769.33 ($651.38 for Lt. Col. Lewis's travel costs and
$117.95 for the court reporter costs). Defs. Mem. 83-1 at
3-4. Defendants move for expense-reimbursement pursuant to
Federal Rule of Civil Procedure 37(d), which permits
sanctions and requires a party failing to appear for his or
her own deposition to “pay  reasonable expenses,
including attorney's fees, caused by the failure, ”
unless the failure to appear was “substantially
justified or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(d)(1)(A)(i) and 37(d)(3).
June 26, 2019 opposition to the Motion for Expenses and at
the June 26, 2019 hearing, Plaintiff argued that the parties
did not have a “locked down date for
depositions.” ECF No. 114 at 1. Plaintiff indicates she
had “never received feedback about when the agency
would provide their witnesses for plaintiff to depose.”
Id. Apparently drawing on her experience in Army
administrative proceedings, Plaintiff expressed her belief
that she would be deposed at the same time the witnesses she
wanted to be deposed would be presented for deposition.
court explained to Plaintiff during the June 26, 2019
hearing, depositions pursuant to the Federal Rules of Civil
Procedure could be taken at different times. Plaintiff
incorrectly assumed that she was not required to appear for
her deposition that had been properly noticed. She apparently
also assumed that, based only on her naming potential
witnesses in her Rule 26(a) disclosures, Defendants would
make those witnesses available. However, the Federal Rules
require that depositions be noticed as required by Rule 30.
Although Plaintiff is a pro se litigant, she is nonetheless
bound by the Federal Rules of Civil Procedure and the Local
Rules of this District. Information on Representing
Yourself in a Civil Action (Non-Prisoner), 5 (“It
is your responsibility to comply with the Federal Rules of
Civil Procedure (FRCP), the Local Rules of this District, and
any statutes and other rules that may apply to your
particular case.”) (available at
https://www.scd.uscourts.gov/default.asp#, under “Pro
Se, ” “Guide”).
was required to appear for her deposition as noticed or to
discuss any concerns regarding the deposition notice with
defense counsel well in advance of the scheduled date. Rule
37's award of costs as requested by Defendants could
appropriately be awarded. Nonetheless, given Plaintiffs pro se
and in forma pauperis status, the court finds that
“circumstances make an award of expenses unjust.”
Defendants' Motion for Expenses, ECF No. 83, is
denied. Although Defendants' Motion had also
requested that Plaintiff be compelled to appear for her
deposition, defense counsel indicated that would be necessary
only if this matter proceeds beyond the summary judgment
stage. In the event this case does proceed beyond summary
judgment and it is determined that additional time for
discovery should be permitted Defendants would be able to
re-notice Plaintiffs deposition. If and when that happens,
Plaintiff is admonished that she must communicate with
defense counsel concerning any deposition notice and must
appear for her deposition. In addition, if further discovery