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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

 

 Before the Court are Plaintiff’s Motion to Modify Subpoena Duces Tecum (Doc. 

69), to which there is no response; Defendant’s Motion for Sanctions, Dismissal and 

Expenses for Plaintiff’s Failure to Appear for Deposition (Doc. 54), Plaintiff’s Response 

(Doc. 63), and Defendant’s Reply (Doc. 67); Plaintiff’s Motion for Protective Order 

Relating to Plaintiff’s Confidential Health Information and Motion for Giving Permission 

to File a Motion for Leave to Amend Pleadings (Doc. 62), Defendant’s Response (Doc. 

64), and Plaintiff’s Reply (Doc. 68); and the parties’ Joint Notice of Discovery Dispute 

(Doc. 75). 

I. Motion to Modify 

 Having reviewed the motion to modify Plaintiff’s subpoena duces tecum, the Court 

will grant it. Accordingly, it is ordered that Plaintiff’s Motion to Modify Subpoena Duces 

Tecum (Doc. 69) is granted. 

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Kolela Mpoyo, 

 

Plaintiff, 

vs. 

FIS Management Services, LLC, 

Defendant. 

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No. CV-17-04307-PHX-SPL 

ORDER 

 
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 II. Motion for Sanctions 

A court may sanction a party, upon motion, for failing to appear for the party’s own 

deposition. Fed. R. Civ. P. 37(d)(1)(A)(i); see Sali v. Corona Reg’l Med. Ctr., 884 F.3d 

1218, 1222 (9th Cir. 2018). In doing so, the Court may order any item listed under Rule 

37(b)(2)(A)(i)-(vi) as a sanction against the offending party. Fed. R. Civ. P. 37(d)(3). 

Additionally, the court must require the offending party to pay the reasonable expenses, 

including attorney’s fees, caused by its failure to appear at its own deposition. See Fed. R. 

Civ. P. 37(d)(3). 

 After reviewing the briefing, the Court finds that Defendant has been prejudiced by 

Plaintiff’s failure to appear for his deposition. However, the Court is unwilling to dismiss 

Plaintiff’s complaint as a remedy.1

 Instead, the Court will require Plaintiff to pay the 

reasonable expenses, including attorney’s fees, caused by Plaintiff’s failure to appear for 

his own deposition. To the extent Plaintiff has still not appeared for his deposition, this 

Order also puts Plaintiff on notice that any future failure to appear for his deposition could 

result in the dismissal of his case or any other sanction pursuant to Rule 37(d). Defendant 

will have fourteen (14) days to submit its costs and fees associated with bringing this 

motion. Accordingly, Defendant’s motion for sanctions (Doc. 54) is denied in part and 

granted in part, to the extent the Court will not dismiss Plaintiff’s complaint but will 

assess him the appropriate fees and costs. 

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 The Court notes, however, that Plaintiff’s attempt to wait until the last minute to 

file an “objection” to his deposition is alarming. While the Court is not dismissing Plaintiff’s case, it admonishes Plaintiff’s behavior. There is no reason Plaintiff could not 

have picked up his telephone and called Defendant to reschedule the deposition prior to January 11, 2019, if Plaintiff’s true worry was that the date of the deposition was too close to the end of discovery. Furthermore, Defendant’s email asking to move the deposition to two days later due to an illness (1) made clear that the deposition would be moved only if Plaintiff agreed and confirmed and (2) did not show any “bad faith” in attempting to move the deposition deadline. Plaintiff’s behavior here was simply unwarranted. 
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 III. Motion for Protective Order and Leave to Amend 

Plaintiff seeks a protective order to seal his confidential health information he has 

disclosed to Defendant. (Doc. 62 at 1.) He also seeks permission for leave to amend his 

pleadings. (Doc. 62 at 1.) Defendant does not object to a protective order protecting 

Plaintiff’s confidential information from disclosure to third parties. (Doc. 64 at 1.) 

However, Defendant does object to Plaintiff’s request to amend his pleadings. (Doc. 64 at 

1.) 

 a. Protective Order 

 Having considered the Plaintiff’s Motion for Protective Order and the proposed 

Stipulated Protective Order, and finding good cause appearing, the Court will grant a 

protective order to seal Plaintiff’s resume and application materials. 

 b. Leave to Amend 

 Plaintiff argues that certain documents obtained from a subpoena of HealthFitness 

reveal HIPAA violations and that certain EEOC documents are “missing” from 

Defendant’s disclosure. (Doc. 62 at 2-3.) He also argues that the Government shutdown 

caused delay in obtaining certain EEOC documents. (Doc. 62 at 3-4.) Defendant argues 

that Plaintiff is simply attempting, yet again, to extend the discovery deadline and to delay 

this litigation. (Doc. 62 at 1.) Defendant argues that Plaintiff did not act reasonably in 

pursuing discovery and has not shown any reason to reopen the pleadings more than a year 

after the filing of his complaint. (Doc. 64 at 2.) Having reviewed the briefing, the Court 

finds that Plaintiff has not shown good cause for amending his Complaint at this date in 

the litigation. Thus, the Court denies Plaintiff’s request for permission for leave to amend 

his pleadings. 

 Accordingly, the Court grants in part and denies in part Plaintiff’s Motion for 

Protective Order Relating to Plaintiff’s Confidential Health Information and Motion for 

Giving Permission to File a Motion for Leave to Amend Pleadings (Doc. 62). 

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IV. Notice of Discovery Dispute 

Having reviewed the parties’ notice of discovery dispute (Doc. 75), the Court will 

schedule a hearing to address the disputed items. The parties should be prepared to address 

each item and explain why each is or is not relevant, what is inhibiting its disclosure, and 

why. 

V. Conclusion 

 After reviewing all the motions and the discovery notice, the Court will extend the 

discovery and dispositive motion deadlines. The discovery deadline is now May 27, 2019, 

and the dispositive motion deadline is June 18, 2019. 

 IT IS ORDERED: 

1. That Plaintiff’s Motion to Modify Subpoena Duces Tecum (Doc. 69) is 

granted; 

2. That Defendant’s Motion for Sanctions (Doc. 54) is granted in part and 

denied in part; 

3. That Defendant shall have fourteen (14) days to submit its costs and fees 

associated with bringing its motion for sanctions; 

4. That Plaintiff’s Motion for Protective Order and Motion for Giving 

Permission to File a Motion for Leave to Amend Pleadings (Doc. 62) is 

granted in part and denied in part; and 

5. That, pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff’s resume 

and application materials are to be kept confidential; and 

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6. That, pursuant to the parties’ Joint Notice of Discovery Dispute, a hearing is 

set to address the matter on May 23, 2019 at 10:00 a.m. before the 

Honorable Judge Steven P. Logan, United States District Judge, in the Sandra 

Day O’Connor United States Courthouse, located at 401 West Washington 

Street, Phoenix, Arizona 85003, 5th Floor, Courtroom 501. 

 Dated this 24th day of April, 2019. 

Honorable Steven P. Logan 

United States District Judge