United States District Court, E.D. Louisiana
MARK MARTINOLICH, ET AL.
NEW ORLEANS HEARST TELEVISION, INC.
REPORT AND RECOMMENDATION
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE
the Court is the Motion for Sanctions [Doc. #101], filed by
defendants New Orleans Hearst Television, Inc. and Travelers
Property Casualty Company of America (collectively,
“defendants”). On October 13, 2017, the District
Court referred the motion to the undersigned. [Doc. #105].
The motion is opposed. [Doc. #102]. Having reviewed the
pleadings and the case law, the Court rules as follows.
complaint alleges as follows. In February 2015, plaintiff
Mark Martinolich was working in St. Bernard Parish when he
fell into a hole and broke his ankle. Defendant New Orleans
Hearst Television, Inc. owns the property on which the hole
was located. Mark thus sues defendants under various
theories, while his wife asserts claims for loss of
consortium, society, companionship, and services.
discovery process - and this lawsuit in general - has been
convoluted from the start. Defendants now move to sanction
plaintiffs for three discovery infractions, each of which
this Court will address in turn.
Failure to Appear at Depositions
August 4, 2017, defendants unilaterally noticed the updated
depositions of plaintiffs to occur on August 28, 2017.
Defendant noticed the updated deposition because - despite
his extensive medical treatment after falling into a hole -
plaintiffs had produced only a single, partial medical record
since the District Court last continued trail in March 2017.
Defendants asked plaintiffs via e-mail to inform them if they
were unavailable on that date. Plaintiffs failed to respond
and did not file a motion for a protective order or a motion
to quash the deposition. Defendants appeared for the
deposition and held a process verbal, the transcript of which
is attached to their motion. Citing Federal Rule of Civil
Procedure 37(d), defendants ask the Court to sanction
plaintiffs for their failure to appear at their
contend that Rule 37(d) only applies when a party properly
notices a deposition. Citing Rule 30(a)(2)(A)(ii), plaintiffs
argue that the deposition was not properly noticed because
defendants failed to seek leave of court to depose Mark for
the third time. Plaintiffs' counsel maintains that he
called defense counsel early on the morning of August 28,
2017 to inform them that plaintiffs were unavailable. He
apologized for the delay in informing them, but he also
appeared at the process verbal, which was held at his office.
At the process verbal, plaintiffs' counsel agreed to pay
for the court reporter, which he has since done. Lastly,
plaintiffs note that defendant failed to hold a Rule 37
conference before filing their motion.
37(d) - on which defendants rely - provides that “[t]he
court where the action is pending may, on motion, order
sanctions if . . . a party . . . fails, after being
served with proper notice, to appear for that
person's deposition.” Fed.R.Civ.P. 37(d)(1)(A)(i)
(emphasis added). “Sanctions may include any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi).”
Id. (d)(3). “Instead of or in addition to
these sanctions, the Court must require the party failing to
act, the attorney advising that party, or both to pay the
reasonable expenses, including attorney's fees, caused by
the failure, unless the failure was substantially justified
or other circumstances make an award of expenses
addition, however, Rule 37 provides that “[a] motion
for sanctions for failing to answer or respond must include a
certification that the movant has in good faith conferred or
attempted to confer with the party failing to act in an
effort to obtain the answer or response without court
action.” Id. 37(d)(1)(B). Moreover, Rule 30
provides that “[a] party must obtain leave of court . .
. if the parties have not stipulated to the deposition and .
. . the deponent has already been deposed in the case . . .
.” Id. 30(a)(2)(A)(ii).
failed to comply with both of these requirements. Because
this was to be the third deposition of Mark Martinolich
defendants needed leave of court to proceed. They sought no
leave. And neither did they include a certificate with their
motion that they held a Rule 37 conference in good faith to
attempt to resolve these issues without court action. Indeed,
while plaintiffs' response was certainly dilatory - and
not casually excused by this Court - the exhibits to the
pleadings reveal that plaintiffs have attempted to
accommodate defendants with regard to a third deposition. Not
only did they offer to pay the court reporter (which they
did, as noted), but they “are available and willing to
participate in depositions.” [Doc. #101-2 at p. 5].
This, in and of itself, leads the Court to believe that had
the parties attended a Rule 37 conference in good
faith, this motion might have been unnecessary.
In re Presto, the bankruptcy court held that
“[i]f a party is going to accuse an opposing party of
failing to comply with a Rule . . . then the moving party
itself must comply with the relevant rule.” 358 B.R.
290, 294 (Bankr.S.D.Tex. 2006). The Presto court
also noted that the Fifth Circuit would appear to agree on
compliance with Rule 37. See id at 294 n.1
(“The Fifth Circuit would seem to agree. See, e.g.,
Greer v. Bramhall, 77 Fed.Appx. 254, 255 (5th Cir. 2003)
(“Greer's motion to compel did not contain the
required certification that he had ‘in good faith
conferred with the party failing to make the discovery.'
Consequently, Greer was not prejudiced [by] the district
court's failure to rule on the motion to compel prior to
granting summary judgment to Bramhall.”).” Many
courts have held similarly. See, e.g., Anzures v.
Prologis Tex. I, L.L.C., 300 F.R.D. 314 (W.D. Tex. 2012)
(denying motion to compel and threating to deny future
motions to compel for failure to comply with Rule 37); In
re Lentek Int'l, Inc., Bankr. No. 6:03-bk-08035,
2006 WL 2787064 at *1 (Bankr. M.D. Fla. Sept. 12, 2006)
(finding insufficient a certification that - after counsel
conferred with opposing counsel and narrowed the issues, it
was unclear that all the issues had been resolved - because
it failed to indicate the discussion had conclusively ended
in an impasse with an issue for the court to determine and
denying motion to compel); Ross v. Citifinancial,
Inc., 203 F.R.D. 239, 240 (S.D.Miss. 2001) (finding that
a certification that the movant conferred in good faith to
obtain certain discovery responses was absent and that
correspondence discussing the discovery at issue included
with the motion did not satisfy the good-faith certification
requirement and denying motion to compel). Because no
discovery conference under Rule 37 was held in good faith
before defendants filed this motion, and because the
allegations reveal that the motion might have been entirely
unnecessary had that happened, this Court will thus recommend
denial of the motion on this issue.
Failure to ...