A skier, who sued ski resort (Heavenly Valley LP), its parent company (Vail Resorts), and one of Heavenly Valley’s seasonal employees after sustaining injuries caused from a collision with the employee on the slopes, has lost a discovery battle against the defendant employee.
Specifically, a magistrate judge for the District of Nevada ruled that the defendant did not exhibit sufficient “prejudice” and “bad faith” to merit the draconian sanctions provided for by Federal Rule of Civil Procedure Rule 37.
The accident in question occurred on February 22, 2012. Plaintiff Elisabeth Benschop was skiing at the Heavenly Mountain Resort in Colorado when Andrea Ramos, a 20-year- old Argentinean snowboarder and employee at the resort, crashed into her. Benschop and her husband alleged that Ramos, who was off-duty, failed to give her the right-of-way.
Benschop was knocked unconscious by the collision and sustained a grade IIIb concussion and other injuries. In the complaint, Benschop also claimed that she has suffered “sleep loss since the accident and is concerned about her future ability to enjoy the quality of life, such as skiing, sailing and snorkeling, which she participated in with her husband before the accident.”
In suing Heavenly Valley and Vail Resorts, the plaintiffs alleged that the corporate defendants’ policies contributed to the accident and that they, along with Ramos, should be held liable for her medical costs and legal fees.
Specifically, they noted that the corporate defendants lure foreign employees to work at the resort, paying them “low wages, free season ski passes, discounted food and merchandise, helmets and medical insurance.”
However, the foreign workers “are not provided with liability insurance, at least not by Vail or Heavenly. So after they crash into other resort guests, seriously injuring them, and return to their home countries, the injured guests have no recourse against the foreign employees who caused the injuries.”
The plaintiffs added that “there is virtually no chance that injured ski area guests can recover any damages from the foreign employees for injuries suffered.”
The plaintiffs charged that “Ramos was negligent per se and her employer, defendants Vail Resorts Inc. and/or Heavenly Valley, are vicariously liable for Ramos’ negligence, and directly liable due to their negligent instruction and training of Ramos, after having provided her with free snowboarding access to the resort.”
The discovery dispute centered on Ramos, who failed to appear for her deposition and produce documents. In response, the plaintiffs asked the court to sanction the defendant, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(ii) and prohibit her “from introducing evidence in this action.”
The defendant countered that she was not properly served with the deposition notice and order for the instant motion. Further, she argued that such “a severe sanction is not appropriate in this case because the plaintiffs have not demonstrated any prejudice or bad faith” on her part.
The court noted that the plaintiffs acted quickly after the accident, “due to the defendant’s planned departure from the United States.” They filed an ex parte motion for an order allowing immediate deposition of the defendant. On March 5, 2012, the court granted their motion. The plaintiffs notified Ramos that her deposition was scheduled for March 8, 2012. But the defendant did not show.
On March 12, 2012, the plaintiffs moved for an order compelling the defendant to attend her deposition on March 15, 2012. The court granted the motion. Again, Ramos did not show.
On March 15, 2012, the plaintiffs filed a motion for discovery sanctions against Ramos due to her failure to appear for her deposition.
On March 26, 2012, Ramos retained counsel and filed an answer.
After reviewing the arguments, the court agreed with the defendant that the plaintiffs had not demonstrated “prejudice and bad faith.”
Rule 37(b)(2)(A) permits the court to impose sanctions against a party who fails to obey a court order to attend a deposition, according to the magistrate judge. “In accordance with the general due process restriction upon a court’s discretion, Rule 37(b)(2) requires that ‘any sanction [imposed pursuant to it] must be just.’ Insurance Corp of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707, 102 S. Ct. 2099, 72 L. Ed. 2d 492 (1982). All sanctions imposed for failing to comply with a discovery order must be reasonable in light of the circumstances, and a sanction is reasonable only if its character and magnitude are proportionate to the character and magnitude of the violation of the underlying discovery order, and the harmful consequences of that violation. See Vaca v. Rio Properties, Inc., 2011 U.S. Dist. LEXIS 27796, 2011 WL 830519 (D.Nev., March 3, 2011). In determining an appropriate sanction for failure to comply with a discovery order or attend a scheduled deposition, the court examines five factors: (1) the public’s interest in the expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to non-offending party; (4) the public policy favoring disposition of cases on the merits; and (5) availability of less drastic sanctions. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006).
“Here, it is clear that the defendant failed to comply with the court’s order to appear at her deposition (#15). However, the court’s findings demonstrate that the requested sanction is inappropriate. First, there has been no prior order from this court involving the issuance of sanctions against the defendant. This is the first time the court has addressed whether the defendant’s failure to comply with a court order should result in sanctions. Second, the court finds that the plaintiffs have failed to establish any prejudice that would result from not issuing such a drastic sanction. Nor have the plaintiffs established that they have been prejudiced by the defendant’s actions. Discovery in this action has not concluded and will not conclude until early 2013, providing the plaintiffs another opportunity to schedule the deposition. Further, the plaintiffs have failed to show that defendant acted in bad faith. The defendant is now represented by counsel and has filed an answer. Taking into account the factors above, the court finds that the plaintiffs’ request for sanctions prohibiting the defendant from presenting evidence in this case is inappropriate.”
Elisabeth Benschop and Calvin Fitzgerald v. Vail Resorts et al.; D. Nev.; 3:12-cv-00120- HDM-VPC, 2012 U.S. Dist. LEXIS 94342; 7/9/12
Attorneys of Record: (for plaintiffs) J. D. Sullivan, LEAD ATTORNEY, Sullivan Law, Minden, NV, Gene M. Kaufmann, Sullivan Law Offices, Minden, NV. ( for defendants) Margo Piscevich, Mark J. Lenz, Piscevich & Fenner, Reno, NV. Jonathan D. Blum, Kolesar & Leatham, Las Vegas, NV, Robert J. Caldwell, Kolesar & Leatham, Chtd., Las Vegas, NV.
