Kuberski v. Allied Recreation Group, Inc.
OPINION AND ORDER granting in part 25 in that sanctions in the amount of $8,247.20 in attorneys fees and travel expenses are awarded in Allieds favor; the motion is OTHERWISE DENIED. Signed by Magistrate Judge Susan L Collins on 8/3/17. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ALLIED RECREATION GROUP, INC., )
CAUSE NO. 1:15-cv-00320-RL-SLC
OPINION AND ORDER
Before the Court in this breach-of-warranty action is a motion for sanctions under
Federal Rule of Civil Procedure 37(d) filed by Defendant Allied Recreation Group, Inc.
(“Allied”), against Plaintiff Joseph Kuberski (“Mr. Kuberski”), seeking to recover Allied’s
attorney’s fees and travel expenses for the December 1, 2016, deposition of Mr. Kuberski and an
August 22, 2016, inspection of the recreational vehicle (“RV”) at issue, together with Allied’s
attorney’s fees for preparing the instant motion. (DE 25). Briefing on the motion, including a
sur-response and a sur-reply, is now complete (DE 30; DE 39; DE 40-1; DE 45), and the motion
is ripe for adjudication.
The motion was referred to the undersigned Magistrate Judge by District Judge Rudy
Lozano for disposition. (DE 26). For the following reasons, Allied’s motion for sanctions is
GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 3, 2015, Mr. Kuberski filed this breach-of-warranty suit against Allied, a
supplier of RVs, alleging that the RV that he had purchased from Allied’s dealer was defective
and that Allied had failed to reasonably repair the defects. (DE 1). On January 8, 2016, the
Court conducted a preliminary pretrial conference, setting a discovery deadline of December 12,
2016. (DE 8). Allied moved to amend these deadlines on several occasions due to the parties’
various scheduling challenges, which the Court granted, resulting in a discovery deadline of
February 17, 2017. (DE 10 to DE 15; DE 17). In January 2016, Ronald Burdge (“Burdge”),
counsel to Mr. Kuberski, and Bruce Terlep (“Terlep”), counsel to Allied, began attempting to
schedule dates for Allied’s deposition of Mr. Kuberski and for Allied’s inspection of the subject
RV. (DE 30-13 at 1 ¶ 2).
A. Mr. Kuberski’s Deposition
On February 15, 2016, Terlep noticed Mr. Kuberski’s deposition for April 14, 2016, in
Fayetteville, North Carolina, which was the location of Mr. Kuberski’s residence set forth in his
initial disclosures. (DE 25 at 2; DE 30-13 at 1 ¶ 3). Burdge, however, responded that Mr.
Kuberski had moved from North Carolina to Utah.1 (DE 30-3; DE 30-13 ¶ 3). Terlep then renoticed the deposition for the same date, but with the location in St. George, Utah. (DE 30-4;
DE 30-13 ¶ 3). Later, however, Terlep sought to reschedule the deposition; this task proved
challenging, as Mr. Kuberski was unavailable during the months of May and June and both
counsel also had various commitments. (DE 30-6; DE 30-13 at 2 ¶ 4; DE 39-1).
Eventually, Mr. Kuberski’s deposition was scheduled for August 30, 2016, in St. George,
Utah. (DE 30-12; DE 30-13 at 2 ¶ 5). On August 30, 2016, Burdge and Mr. Kuberski timely
Some of Burdge’s and Terlep’s emails were sent by their respective assistants; for ease, the
Court will simply refer to these emails as being from the attorneys.
appeared for the deposition at 10:00 a.m.2 (DE 30-4; DE 30-13 at 2 ¶ 7). But Terlep arrived 30
minutes late, failing to appreciate the time change between Las Vegas, where the nearest airport
is located, and St. George, which is a two-hour drive from the airport. (DE 30-14; DE 39 at 6).
The deposition then commenced at 11:30 a.m. (DE 30-13 at 2-3 ¶ 7).
During the deposition, Mr. Kuberski produced a spreadsheet of alleged defects and a
written list of maladies that Mrs. Kuberski had prepared, which had not been previously
produced in discovery. (DE 25-1 at 2-6; DE 39-11; DE 39-12). Neither Burdge, nor Terlep, was
aware of this spreadsheet and list of maladies prior to the deposition. (DE 25-1 at 2; DE 30-13 at
3 ¶ 8). Some of the information on the spreadsheet and list of maladies had been included in
another document (a Craigslist posting) that had been previously produced; however, the
spreadsheet contained dates, where the previous disclosure did not. (DE 25-1 at 3-4; DE 30-13
at 3 ¶ 8; DE 39 at 7). Mr. Kuberski’s deposition concluded at 4:00 p.m. (DE 39-13 at 2), and
there is a difference of opinion as to why it concluded at that time. Burdge claims that Terlep
had to catch a return flight to Chicago.3 (DE 30-13 at 3 ¶ 9). Terlep, however, asserts that it
became apparent to him during the deposition that he would need to take a second trip to Utah in
order to: (1) depose Mrs. Kuberski, as Mr. Kuberski deferred to her throughout the deposition,
claiming a lack of knowledge on salient issues; and (2) have an opportunity to fully digest the
newly-produced spreadsheet and list of maladies, which were dense and contained new temporal
Burdge indicates that Mr. Kuberski’s wife (“Mrs. Kuberski”) was also present at the August 30,
2016, deposition, but Terlep disputes this. (DE 30-13 at 2 ¶ 7; DE 39 at 7 n.3). The parties’ dispute,
however, is immaterial to the outcome of this Order.
In response, Terlep submits his flight itinerary, which reflects that he had a flight the next day,
August 31, 2016, not the day of the deposition, August 30, 2016. (DE 45-1; DE 45-2).
information.4 (DE 25-1 at 8-10; DE 39 at 7-8). Counsel’s dispute about this point, however, is
immaterial, as regardless of the reasons, they agreed to adjourn the deposition at 4:00 p.m. and
reconvene it at a later date in conjunction with Mrs. Kuberski’s deposition. (DE 39-13 at 2).
In the weeks that followed, Burdge and Terlep attempted to further schedule the
depositions of Mr. and Mrs. Kuberski. (DE 30-13 at 3-4 ¶ 10). Again this was challenging due
to counsel’s schedules and that Burdge injured his knee and underwent surgery, which prevented
him from traveling until after November 1, 2016. (DE 25 at 4; DE 25-1 at 7; DE 30-13 at 3-4 ¶
10). In an email to Burdge on October 27, 2016, Terlep stated:
I would suggest conducting the depositions of Mr. and Mrs.
Kuberski on either December 1 or December 2. As we discussed, I
would expect that we could complete both depositions in a single
day. Please let me know if either of these dates work for your
schedule. . . . If I do not hear back from you by November 7, I will
plan to notice the Kuberskis’ deposition on December 2 . . . .
(DE 25-1 at 7). Burdge did not respond to this email. (DE 25 at 5; DE 30-13 at 4 ¶ 12).
On November 8, 2016, Terlep sent another email to Burdge, attaching notices of
depositions, setting the depositions of Mr. and Mrs. Kuberski for December 1, 2016, at 9:00
a.m., and 1:00 p.m., respectively, in St. George, Utah. (DE 25 at 5; DE 25-1 at 8-11). Terlep
sent the email with a “receive-receipt tag” and a “read-receipt tag.” (DE 39 at 8; DE 25 at 5). At
9:17 a.m. that same day, Terlep received a notice confirming that the email had been received by
Burdge. (DE 25 at 5; DE 25-1 at 12, 31). He then received a read notification, indicating that
Burdge had opened and read the email and attachments at 9:19 a.m. (DE 25 at 5; DE 25-1 at 13,
Burdge contends that Mrs. Kuberski was present at the deposition location and would have been
willing to be deposed that same day so that Terlep would not have to make a second trip to Utah. (DE 39
at 7 n.3). This proffered solution seems dubious, however, as it presumes that both counsel would be
willing to proceed with a deposition that was not properly noticed and without any preparation.
31). Terlep did not receive any communication back from Burdge concerning the deposition
notice, but Terlep did not consider this unusual, as Burdge had previously explained that it was
his practice to contact opposing counsel upon receipt of a deposition notice only if there was a
conflict with the noticed date. (DE 25 at 5; DE 25-1 at 14 (“When a formal deposition notice is
received, if we have no scheduling problem on our end, we normally do not send a confirmation
to the attorney who sent use the notice.”)).
On December 1, 2016, Terlep and a court reporter appeared at 9:00 a.m. in St. George,
Utah, to commence Mr. Kuberski’s deposition. (DE 25 at 6). However, by 10:05 a.m., Mr.
Kuberski and Burdge still had not appeared. (DE 25 at 6). Terlep contends that he then
telephoned Burdge in Ohio and reached Burdge’s assistant, who informed Terlep that Burdge
was “on the other line” (DE 25 at 6; DE 25-1 at 32; DE 39-14 at 2); Burdge, however, denies
that his office received a phone call from Terlep on the morning of December 1, 2016 (DE 30 at
8-9; DE 30-26; DE 30-27; DE 3-28).5 In any event, it became apparent to Terlep that Burdge
was still in Ohio and that the deposition would not go forward. (DE 25 at 6; DE 25-1 at 19).
Terlep then made a record of the non-appearance of Mr. Kuberski and his counsel. (DE 25 at 67; DE 25-1 at 16-36). At 5:18 p.m., while Terlep was waiting in the Las Vegas airport to board a
plane back to Chicago, Terlep emailed Burdge, inquiring why he and his client had failed to
appear for the deposition. (DE 25 at 7; DE 25-1 at 37).
Burdge contends that if Terlep had reached him, he would have tried to cause Mr. and Mrs.
Kuberski to still appear and that he would have participated by telephone. (DE 30 at 13). Terlep,
however, states that he told Burdge’s assistant that he would wait on the line until Burdge became
available, but that Burdge’s assistant said that Burdge’s call was going to take quite a while. (DE 39-5 at
3 ¶ 17). As a result, Terlep ended the call and proceeded to make a record of non-appearance. (DE 39-5
at 3 ¶ 17).
The next morning, December 2, 2016, Burdge sent two emails to Terlep, stating that
Burdge had checked his files and with his staff, that the deposition notice had never been
received, and that he was unaware of the deposition. (DE 25 at 7; DE 25-1 at 38-40; DE 30-13
at 4-5 ¶¶ 13-15). Three days later, Terlep responded to the email, asserting that Burdge was
incorrect as evidenced by the “receive-receipt tag” and the “read-receipt tag” on the November
8, 2016, email transmitting the notice of deposition. (DE 39 at 8-9; DE 25 at 7; DE 39-19).
The depositions of Mr. and Mrs. Kuberski were later rescheduled per agreement of
counsel and were completed on January 23, 2017. (DE 30-13 at 5-6 ¶ 17).
B. The RV Inspection
On June 28, 2016, Terlep, having learned that Mr. Kuberski had moved from North
Carolina to Utah, noticed Allied’s inspection of the subject RV for August 23, 2016, at Camping
World of St. George, Utah. (DE 25 at 7; DE 30-8). Burdge responded that although Mr.
Kuberski had moved to Utah, the RV remained in North Carolina. (DE 30-9 at 1). Terlep then
re-noticed the RV inspection for one day earlier, August 22, 2016, at Camping World in
Fayetteville, North Carolina, as the dealership had an appropriate service bay and diagnostic
tools necessary to conduct a meaningful inspection. (DE 25 at 8; DE 25-1 at 42; DE 30-10).
Burdge responded, however, that the RV was located in a rural location in Cameron, North
Carolina, about 40 miles from Fayetteville, and that Mr. Kuberski would not agree to transport
the RV to the Fayetteville dealership for purposes of Allied’s inspection. (DE 25 at 8; DE 25-1
at 41-42). Given that Mr. Kuberski would not agree to transport the RV, Allied re-noticed the
deposition for August 22, 2016, in Cameron. (DE 30-11). Although Allied contends that it was
“universally understood” that the RV would need to be driven as part of its inspection process,6
Allied did not include this provision—or anything about the RV’s license plates and
registration—in the deposition notice. (DE 39-5 at 1 ¶ 2; DE 25-1 at 42).
On August 22, 2016, Douglas Haas, Allied’s expert witness; David Matzenger, an Allied
representative; and Terlep traveled to Cameron to complete the RV inspection. (DE 25 at 9).
Burdge was also in attendance. (DE 30-13 at 2 ¶ 6). Unbeknownst to Burdge, Mr. Kuberski had
allowed the RV’s license plates and registration to expire, preventing Allied from conducting a
test drive of the RV and from transporting it to Fayetteville for inspection with certain diagnostic
tools. (DE 25 at 9; DE 25-1 at 20-22; DE 39 at 4-5). Burdge suggested that Terlep contact its
local dealer to obtain a temporary dealer tag; Terlep did so, but the dealer would not loan out a
tag, explaining that it was illegal to do so. (DE 30-13 at 2 ¶ 6; DE 30 at 5; DE 39-6).
Consequently, the parties agreed to continue the inspection to a later date after Mr. Kuberski had
obtained the proper license plates and registration. (DE 30-13 at 2 ¶ 6). Terlep told Burdge at
the time that Allied would not seek reimbursement for its travel expenses and time for the
August 22, 2016, inspection. (DE 30-13 at 2 ¶ 6; DE 25-1 at 22). Terlep later confirmed this in
his Statement of Nonappearance on December 1, 2016, stating: “I advised Mr. Burdge that
defendant would not seek its costs and fees that it unnecessarily had to incur for that first
[inspection] trip, but that we would simply reschedule, because, obviously, things can happen
that might be out of someone’s knowledge or simply fall through the cracks.” (DE 25-1 at 22).
In April 2016, the RV was inspected by Mr. Kuberski’s expert, Phillip Grismer, who opined that
the RV exhibited various defects that were evident only when driving the RV. (DE 25 at 8-9; DE 39-9).
As part of his inspection, Grismer drove the RV, which then had valid license plates and registration.
(DE 25 at 8-9). This inspection occurred without notice to Allied, and thus, neither Terlep nor anyone
from Allied attended that inspection. (DE 25 at 9 n.5).
In the following months, counsel attempted to reschedule the RV inspection. (DE 25 at
9). The inspection was first rescheduled for November 2, 2016, but was cancelled due to the
poor condition of the roads around Fayetteville following a recent hurricane. (DE 25-1 at 7).
Eventually, the inspection was completed on December 14, 2016, at which time the RV had
valid license plates and registration, and Allied’s expert was able to test drive and transport the
RV to the Fayetteville dealership for diagnostic testing. (DE 25 at 9; DE 30-13 at 5 ¶ 16).
II. APPLICABLE LEGAL STANDARD
Federal Rule of Civil Procedure 37(d)(1)(A) provides that the court “may, on motion,
order sanctions if: (i) a party . . . fails, after being served with proper notice, to appear for that
person’s deposition; or (ii) a party, after being properly served with . . . a request for inspection
under Rule 34, fails to serve its answers, objections, or written response.” As to types of
sanctions, Rule 37(d) provides:
Sanctions may include any of the orders listed in Rule
37(b)(2)(A)(i)-(vi). 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
Fed. R. Civ. P. 37(d)(3) (emphasis added).
Allied requests that Mr. Kuberski be sanctioned for failing to appear for his December 1,
2016, deposition, and for failing to produce the subject RV for a meaningful inspection on
August 22, 2016. Allied seeks its reasonable attorney’s fees and travel expenses in relation to
the two events, plus its attorney’s fees in preparing the instant motion, but no other sanctions.
Mr. Kuberski opposes Allied’s motion, offering several arguments why sanctions are not
warranted under the circumstances presented. Ultimately, Mr. Kuberski’s arguments in
opposition to sanctions are persuasive with respect to the August 22, 2016, inspection, but not as
to the December 1, 2016, deposition.
A. Sanctions Will Be Imposed as a Result of Mr. Kuberski’s
Non-Appearance for His Deposition on December 1, 2016
Mr. Kuberski offers three reasons why sanctions should not be imposed for his failure to
appear at the December 1, 2016, deposition: (1) Allied failed to properly serve the notice of
deposition pursuant to Federal Rule of Civil Procedure 5; (2) neither Mr. Kuberski nor Burdge
had actual knowledge of the December 1, 2016, deposition; and (3) a second deposition of Mr.
Kuberski was not necessary. The Court will address each of these arguments in turn.
Mr. Kuberski first argues that Allied did not properly serve the notice of deposition
because he served the deposition notice by email and no other means. While he acknowledges
that Rule 5(b)(2) authorizes service by “sending it by electronic means if the person consented in
writing,” Fed. R. Civ. P. 5(b)(2), he contends that he never expressly agreed in writing to
electronic service. Allied argues, however, that Mr. Kuberski consented to electronic service
when Burdge: (1) registered for the CM/ECF filing system used by this Court; and (2) stated in
an email to Terlep on May 17, 2016, that he would accept discovery requests via email (DE 3916).
The CM/ECF provision that Allied points to is Section I(B)(3) of the CM/ECF Civil and
Criminal User Manual (“the “CM/ECF Manual”), which provides: “An attorney’s registration
will constitute a waiver of conventional service of documents and the attorney agrees to accept
service of notice on behalf of the client of the electronic filing by hand, facsimile or authorized
e-mail.” Mr. Kuberski contends, however, that the CM/ECF Manual pertains only to documents
that are filed electronically, not to documents that are not filed in the record, such as discovery
requests, disclosures, and deposition notices.7 See N.D. Ind. L.R. 26-2 (instructing that
discovery requests and related documents are not filed, except in cases involving a pro se party).
Consequently, as Mr. Kuberski sees it, because discovery documents are not filed, they must
instead be served in accordance with the federal civil and local rules.8
Mr. Kuberski’s parsing of the CM/ECF Manual language, however, is not persuasive.
The proffered statement in the CM/ECF Manual is written broadly; if this Court intended to
carve out electronic service for discovery, the Court likely would have explicitly said so in either
its CM/ECF registration document, the CM/ECF Manual, or this Court’s local rules.
In any event, aside from Burdge’s CM/ECF registration, there is other evidence that
Burdge explicitly consented to receive service of discovery by electronic means. In an email to
Terlep on May 17, 2016, Burdge stated: “Please email us a Word or WordPerfect version of the
discovery so we may insert the responses from our client. You may always serve discovery on
my office via email if you wish, in addition to ordinary mail, as it will speed up the process on our
end.” (DE 39-16 (emphasis added)). Allied asserts that this statement by Burdge satisfies the
In particular, Mr. Kuberski points to Local Rule 5.2, which states: “A person registered to use
the court’s electronic-filing system is served with an electronically filed paper when a ‘Notice of
Electronic Filing’ is transmitted to that person through the court’s electronic-filing system.” N.D. Ind.
L.R. 5-2(b). He argues that because he never received a “Notice of Electronic Filing” from the CM/ECF
system for the notice of deposition, he was not properly served.
Notably, however, Mr. Kuberski’s initial disclosures were served by his counsel on January 26,
2016, solely by email. (DE 45-3).
written consent to electronic service requirement of Rule 5(b)(2)(E).
Mr. Kuberski urges a different interpretation of Burdge’s email. He contends that
Burdge’s statement was not a consent to electronic service of discovery as the sole means of
service, but rather, it was a consent to electronic service as an additional means of service of
discovery. (DE 40-1 at 5). But Mr. Kuberski’s proffered interpretation does not make sense, as
there is no need to serve an opposing party with discovery via two methods. The more logical
interpretation of Burdge’s email is that he was consenting to service either by email or by
ordinary mail. Consequently, the Court finds that Burdge’s email dated May 17, 2016, satisfies
the written consent to electronic service required by Rule 5(b)(2)(E).
Having concluded that Burdge did consent in writing to electronic service of discovery,
Mr. Kuberski fails to dispute the evidence that the notice of deposition was, in fact, emailed to
and received by Burdge. Although Burdge and his staff have no recall of the email, the
electronic “receive-receipt tag” and the “read-receipt tag” offered by Allied overcome that
denial. In light of this evidence, the Court concludes that Allied properly served notice to Mr.
Kuberski of his deposition on December 1, 2016.
Having found that Allied did, in fact, serve Mr. Kuberski with proper notice of the
December 1, 2016, deposition, the Court finds that Mr. Kuberski’s second argument—that he
had no actual knowledge of the notice of deposition based on Terlep’s October 27, 2016 email
discussing the proposed deposition dates—is moot. As to Mr. Kuberski’s third argument
asserting that a second deposition of Mr. Kuberski was unnecessary, that too is a nonstarter. It is
undisputed that the parties agreed at the close of Mr. Kuberski’s first deposition on August 30,
2016, to continue the deposition to another date when Mrs. Kuberski could also be deposed.
(DE 30-15 at 6). As such, whether the additional deposition of Mr. Kuberski was necessary is
irrelevant; the parties agreed to reconvening the deposition, Fed. R. Civ. P. 30(a)(2)(A)(ii); the
December 1, 2016, deposition was properly noticed; and Mr. Kuberski was obligated to appear.
As explained above, under Rule 37(d)(3), 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.” Fed. R. Civ. P. 37(d)(3) (emphasis added); see Knowledge
A-Z, Inc. v. Jim Walter Res., Inc., No. 1:05CV1019RLY-WTL, 2008 WL 2600167, at *1 (S.D.
Ind. June 25, 2008) (“Indeed, the sanctions sought by [the defendant]—reimbursement of its
expenses—are not only appropriate; they are made virtually mandatory by Rule 37(d)(3).”).
Because Mr. Kuberski’s non-appearance at the December 1, 2016, deposition was not
substantially justified, and because the Court notes no other circumstances that make an award of
expenses unjust, Allied’s motion to the extent it seeks sanctions of its attorney’s fees and travel
expenses for Mr. Kuberski’s deposition on December 1, 2016, will be GRANTED.
B. Sanctions Will Not Be Imposed as a Result
of the RV Inspection on August 22, 2016
Allied also seeks sanctions for the RV inspection on August 22, 2016, based on Mr.
Kuberski’s failure to maintain the RV’s license plates and registration, which prevented Allied’s
expert from being able to test drive the RV and transport it to Fayetteville for diagnostic testing,
causing Allied to make a second trip to North Carolina. Mr. Kuberski opposes the motion,
asserting that: (1) Allied did not properly serve him with notice of the inspection; (2) his
inadvertence in failing to maintain the RV’s license plates and registration satisfies the
“substantially justified” exception of Rule 37(d)(3); and (3) Terlep told Burdge at the inspection
that Allied would not seek its costs and fees. The Court will consider each of these arguments in
Mr. Kuberski first argues that Allied served the notice of inspection solely via email and
that such electronic service of the notice of inspection is ineffective. The Court has already
discussed the parties’ arguments concerning electronic service of discovery in the context of Mr.
Kuberski’s deposition and concluded in Allied’s favor; that discussion will not be repeated here.
In any event, Burdge appeared for the RV inspection on August 22, 2016, and did not object to
the inspection. Therefore, Mr. Kuberski’s first argument in opposition to the motion for
sanctions is unpersuasive.
Next, Mr. Kuberski emphasizes that he never refused the August 22, 2016, inspection.
Although Allied’s expert could not test drive the RV or transport it to the Fayetteville dealership
for further inspection due to the lack of valid license plates and registration, Allied’s expert did
have the opportunity to inspect the RV the entire day and to take numerous photographs.
Therefore, as Mr. Kuberski sees it, the August 22, 2016, inspection was not meaningless. Mr.
Kuberski characterizes his failure to maintain the RV’s license plates and registration as “a
simple oversight,” considering that he had moved out of state, parked the RV on a storage lot,
and stopped using the RV. (DE 30 at 16). Given these circumstances, Mr. Kuberski urges that
his failure to maintain the RV’s license plates and registration was “substantially justified,” and
thus, that the circumstances do not warrant sanctions under Rule 37(d). See Schofield v. U.S.
Steel Corp., No. 2:04-CV-520-PRC, 2005 WL 3093483, at *5 (N.D. Ind. Nov. 18, 2005)
(“Substantially justified does not mean justified to a high degree, but rather justified in substance
or in the main—that is, justified to a degree that could satisfy a reasonable person.” (citation and
internal quotation marks omitted)).
The Court is persuaded that Mr. Kuberski’s failure to maintain the RV’s license plates
and registration satisfies the “substantially justified” exception of Rule 37(d). While it may have
been “universally understood” that Allied needed to drive the RV for the inspection (DE 39-5 at
1 ¶ 3), Allied did not state this condition on its notice of inspection. Nor did the notice of
inspection state anything about producing the RV with current license plates and registration.
Moreover, this is not a circumstance where Mr. Kuberski failed to respond to an inspection
notice, refused the inspection, or otherwise withheld access to the RV. See Schofield v. U.S.
Steel Corp., 2005 WL 3093483, at *5 (denying Rule 37(d) sanctions where the defendant
attempted to comply with the plaintiff’s inspection request). Thus, Mr. Kuberski did not fail to
respond to a request for an inspection as Rule 37(d) sanctions require. See, e.g., Alexander v.
F.B.I., 186 F.R.D. 6, 10 (D.C. 1998) (collecting cases that denied a request for Rule 37(d)
sanctions where the party responded to the inspection request, although the response was not
Furthermore, Terlep told Burdge at the inspection on August 22, 2016, that Allied would
not seek attorney’s fees and expenses relating to Mr. Kuberski’s oversight. Allied suggests that
Terlep made this statement in the context of prospective mediation—that is, if the case settled at
the mediation, then recovery of attorney’s fees and expenses would not matter. (DE 39 at 6
(“With mediation in mind, what Defense counsel said, while standing in the woods in Cameron,
was something to the effect: that if the case settled at mediation, no worries; this won’t
matter.”)). However, the record does not support Allied’s assertion. Rather, in his Statement of
Non-Appearance recorded on December 1, 2016, Terlep relates that he told Burdge that Allied
“would not seek its costs and fees,” as “things can happen that might be out of someone’s
knowledge or simply fall through the cracks”; notably, there is no mention of mediation in his
statement. (DE 25-1 at 22). Allied’s attempt to re-characterize Terlep’s statement after the fact
is simply not convincing.
In sum, because Mr. Kuberski did produce the RV on August 22, 2016, in accordance
with Allied’s notice of inspection, and because Allied’s inspection notice did not specify any
conditions pertaining to the RV, such as having valid license plates and registration, the Court
finds that sanctions are not warranted against Mr. Kuberski under Rule 37(d) for the inspection.
Therefore, Allied’s motion to the extent it seeks sanctions in the amount of its reasonable
attorney’s fees and expenses for the August 22, 2016, inspection will be DENIED.
C. Sanctions in the Amount of $8,247.20 Will Be Imposed
Allied produces its counsel’s affidavit evidencing that it incurred: (1) $4,536.00 in
attorney’s fees and $699.20 in travel expenses for the December 1, 2016, deposition; and (2) .
$6,024.00 in attorney’s fees for preparing the instant motion. (DE 25-1 at 43-45 ¶¶ 2-11; DE 3918 at 2 ¶ 9; DE 45-1). Mr. Kuberski does not challenge the reasonableness of Allied’s attorney’s
fees or travel expenses. Because the Court denied Allied’s motion for sanctions with respect to
the inspection, Allied’s attorney’s fees for preparing the instant motion will be reduced by 50
Accordingly, Allied’s motion for sanctions pursuant to Rule 37(d) will be GRANTED IN
PART in the amount of $8,247.20 in attorney’s fees and travel expenses, but will otherwise be
DENIED. Because Burdge appears to be the one responsible for the failure to appear at the
deposition, not Mr. Kuberski, the sanctions are to be paid by Burdge. See Fed. R. Civ. P.
37(d)(3) (stating that “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” (emphasis added)).
For the foregoing reasons, Allied’s motion for sanctions pursuant to Rule 37(d) (DE 25)
is GRANTED IN PART in that sanctions in the amount of $8,247.20 in attorney’s fees and
travel expenses are awarded in Allied’s favor; the motion is OTHERWISE DENIED. The
sanctions are to be paid to Allied by Attorney Burdge on or before October 3, 2017.
Entered this 3rd day of August 2017.
/s/ Susan Collins
United States Magistrate Judge
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