United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey United States District Judge.
the Court is the Report and Recommendation filed January 5,
2017, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. ECF
No. 50. Plaintiff has filed an objection. ECF No. 52.
Plaintiff has also filed a Motion to be Deposed Under Rule
30. ECF No. 51. The Court finds this matter ripe for
filed the present action pro se on November 6, 2015.
ECF No. 1. Plaintiff seeks relief pursuant to 28 U.S.C.
§ 1983 and claims that the Housing Authority of the City
of Hot Springs, Arkansas, (“Housing Authority”)
terminated her federal housing benefits in violation of her
constitutional rights. ECF No. 1, ¶ 1. Plaintiff states
that she received public housing administered by Defendant
Housing Authority and was not required to pay rent due to her
level of income. ECF No. 1, ¶ 2. Furthermore, Plaintiff
states that she received an allowance for utilities. ECF No.
1, ¶ 2. Plaintiff claims that she was evicted from her
public housing due to a utility overage in the amount of
$8.18. ECF No. 1, ¶ 19.
Housing Authority and Reggie Harrington subsequently filed a
Motion to Dismiss, claiming that Plaintiff has failed to make
herself available to be deposed. ECF No. 31. Separate
Defendant Sam Spencer has joined this Motion. Defendants
argue that Plaintiff's refusal “to appear for her
deposition or otherwise offer available dates upon which she
will subject herself to be deposed” constitutes lack of
prosecution and dismissal of this action is appropriate. ECF
No. 31, ¶ 5. Defendants have provided evidence that they
made multiple attempts to schedule Plaintiff's
deposition. The record shows that on September 22, 2016,
Defendants sent Plaintiff a Notice of Deposition via
certified mail, informing Plaintiff that she was scheduled to
be deposed on September 28, 2016, in Little Rock, Arkansas.
ECF No. 31-1. The return receipt shows that Plaintiff
received the Notice on September 26, 2016. ECF No. 31-1.
Counsel for Defendant Sam Spencer contacted Plaintiff on
September 27, 2016, and was informed by Plaintiff that she
would not be present for the deposition due to her financial
inability to travel to Arkansas from Kansas, where she had
relocated. ECF No. 31-1. Defense Counsel requested that
Plaintiff provide a suitable date to be deposed, but
Plaintiff failed to do so.
then sent Plaintiff a Second Notice of Deposition on
September 28, 2016, via certified mail. ECF No. 31-1. The
Notice informed Plaintiff that her deposition was scheduled
to be taken on October 6, 2016. ECF No. 31-1. The return
receipt notes that Plaintiff received this Second Notice on
October 3, 2016. In the letter accompanying the Second
Notice, Counsel for Defendant Sam Spencer notified Plaintiff
that if she was unable to attend the deposition, she should
contact Defense Counsel to provide a suitable date. ECF No.
31-1. Plaintiff failed to appear and did not provide an
response to Defendants' Motion to Dismiss, Plaintiff
claims that she was originally told that her deposition could
be taken in Kansas, and that she was unable to travel to
Arkansas for either deposition due to financial hardship,
lack of transportation, and her responsibilities as mother of
five children. ECF No. 34. Plaintiff also claims that
“Defendant is responsible for the financial position
that [Plaintiff] is presently in.” ECF No. 34, p. 2.
Court subsequently issued a Show Cause Order on December 6,
2016, directing Plaintiff to appear before the Court on
January 5, 2017, to show cause as to why her case should not
be dismissed. ECF No. 41. In that Order, the Court made clear
that “Plaintiff's failure to appear may result in a
recommendation that her case be dismissed for her failure to
prosecute this action.” ECF No. 41.
response to the Show Cause Order, Plaintiff filed a Motion to
Show Cause Why Plaintiff is Unable to Travel for Deposition.
ECF No. 42. In that Motion, Plaintiff re-iterated the fact
that she is unable to travel to Arkansas due to her financial
situation, lack of transportation, and familial
responsibilities. Likewise, Plaintiff alleged that she
suffers from “PTSD, Fibromyalgia, Depression Migraines
and [is] receiving psychological counseling services for
[her] entire family.” ECF No. 42, ¶ 3. Plaintiff
also claimed that Defendants are harassing her “because
of her financial instability and her mental and medical
illnesses.” ECF No. 42, ¶ 4. Plaintiff
subsequently failed to appear at the Show Cause Hearing held
on January 5, 2017. ECF No. 49.
Bryant entered a Report and Recommendation on January 5,
2017, recommending that Defendants' Motion to Dismiss be
granted for failure to prosecute and failure to comply with
an Order of the Court. ECF No. 50. On January 23, 2017,
Plaintiff filed a Motion to be Deposed Under Rule 30 as well
as objections to Judge Bryant's Report and
Recommendation. ECF Nos. 51, 52. In her objection, Plaintiff
re-states her argument that her failure to attend the
scheduled depositions and Show Cause Hearing should not be
used as grounds for dismissal because she is unable to travel
to Arkansas due to her current circumstances. ECF No. 52.
Plaintiff further states that she “responded to the
Motion to Dismiss because she has complied with two rounds of
interrogatories and responded to ‘Show Cause' why
she is unable to travel outside of the state of
Kansas.” ECF No. 52, p. 1. Plaintiff further states
that she “did not know the Defendants and the Court
could dismiss her case just because she is indigent and has
no means to finance her travel to Arkansas for a deposition
with her five children.” ECF No. 52, p. 1.
well established that a pro se litigant is bound to
follow procedural rules just as licensed attorneys. See
Lindstedt v. City of Granby, 238 F.3d 933, 937 (8th Cir.
2000). Furthermore, Rule 41 of the Federal Rules of Civil
Procedure provides that “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against
it.” Fed.R.Civ.P. 41(b). In regard to depositions, it
is generally accepted that a plaintiff must make
“herself available for examination in the district in
which suit was brought.” 8A Charles Alan Wright, Arthur
R. Miller & Richard L. Marcus, Federal Practice and
Procedure § 2112 (3d ed. 2010). However, this is a
general rule “and is not adhered to if plaintiff can
show good cause for not being required to come to the
district where the action is pending.” Id.;
see Archer Daniels Midland Co., v. Aon Risk Servs.,
Inc., 187 F.R.D. 578, 588 (D. Minn. 1999). That being
said, courts have noted the special considerations regarding
the deposition of a plaintiff:
The plaintiff . . . stands to gain a substantial monetary sum
and/or other beneficial relief as a result of suing a
defendant. A plaintiff, therefore, cannot invoke the mere
fact [of] inconvenience or expense as a legitimate reason to
refuse to appear and submit himself or herself ...