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Martinolich v. New Orleans Hearst Television, Inc.

United States District Court, E.D. Louisiana

October 19, 2017

MARK MARTINOLICH, ET AL.
v.
NEW ORLEANS HEARST TELEVISION, INC.

         SECTION "B" (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE

         Before 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.

         I. Background

         The 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.

         The 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.

         II. Failure to Appear at Depositions

         On 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 properly-noticed deposition.

         Plaintiffs 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.

         Rule 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 unjust.” Id.

         In 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).

         Defendants 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 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.[1]

         III. Failure to ...


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