PAIN CENTER OF SE INDIANA, LLC et al v. ORIGIN HEALTHCARE SOLUTIONS LLC et al
Filing
291
ORDER granting in part and denying in part Defendants' 161 Motion for Sanctions. The court ORDERS Defendants to file a bill of costs, as contemplated by Rule 37, for those expenses no later than September 30, 2015. Plaintiffs may file any objections to the bill of costs by October 14, 2015. Signed by Judge Richard L. Young on 9/17/2015. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAIN CENTER OF SE INDIANA, LLC;
INDIANA PAIN MEDICINE AND
REHABILITATION CENTER, P.C.; and
ANTHONY ALEXANDER, M.D.,
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Plaintiffs,
vs.
ORIGIN HEALTHCARE SOLUTIONS
LLC;
SSIMED (d/b/a SSIMED Holding, LLC);
ORIGIN HOLDINGS, INC., a Delaware
Corporation; JOHN DOES (1–50)
inclusive; and JOHN DOES (1–100)
inclusive,
Defendants.
1:13-cv-00133-RLY-DKL
ENTRY ON DEFENDANTS’ MOTION FOR CONTEMPT AND SANCTIONS
FOR PLAINTIFFS’ FAILURE TO APPEAR AT 30(b)(6) DEPOSITION ON
DECEMBER 15, 2014
Defendants, SSIMED, d/b/a SSIMED Holding, LLC, Origin Healthcare Solutions,
LLC, and Origin Holdings, Inc., move for sanctions and an order of contempt against
Plaintiffs, the Pain Center of SE Indiana, LLC, the Indiana Pain Medicine and
Rehabilitation Center, P.C., and Anthony Alexander, M.D., for failing to appear at a Rule
30(b)(6) deposition of Plaintiff entities scheduled for December 15, 2014. For reasons
set forth below, Defendants’ motion is GRANTED in part and DENIED in part.
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I.
Background
The court has discerned, to the best of its ability, the following relevant facts from
the parties’ briefs 1:
(1)
On October 31, 2014, the Magistrate Judge outlined a protocol to facilitate
the efficient scheduling of remaining depositions. (See Filing No. 145 at
13–16). The protocol set forth as follows, in relevant part:
(a)
Each of Defendants’ subpoenaed and noticed depositions were to
occur no later than December 31, 2014.
(b)
On November 7, 2014, Defendants were to initiate a good-faith
discussion with Plaintiffs to resolve any remaining scheduling
conflicts, after which the parties were to communicate to the
Magistrate Judge the resolutions achieved and discussions
concerning any depositions then still unscheduled.
(c)
Parties were to continue daily discussions until they reached
agreement on the schedule of all depositions.
(d)
Defendants were to promptly file a joint stipulation and proposed
order for each agreed upon deposition.
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Plaintiffs’ response brief lacks supporting documentation or meaningful citations to the
record. Thus, the court relies significantly upon Defendants’ recitation of the events leading up
to December 15, 2014, as properly supported in their briefs.
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(e)
On November 14, 2014, the parties were to have all depositions
scheduled and, if scheduling disputes remained unresolved, to
indicate as much in a joint notice to the Magistrate Judge.
(f)
In a final note, the Magistrate Judge reminded the parties that “[no]
deposition that has been scheduled shall be modified or canceled
absent an order of the Court or agreement of all parties. Counsel are
specifically instructed that no objection, proposal, request, inquiry,
or communication of any kind . . . and no court filing or informal
communication to the Court will . . . justify counsel’s or a witness’s
failure to appear for and proceed with a scheduled deposition, absent
agreement of all parties or an order of the Court.”
(2)
Following a pretrial conference with the parties on November 14, 2014, the
Magistrate Judge ordered that “the combined Rule 30(b)(6) deposition of
the two [P]laintiff entities shall occur during the first or third week of
December 2014.” The Magistrate Judge further instructed the parties and
their counsel “to cooperate in good faith to schedule these depositions . . . .”
The Magistrate Judge acknowledged the representation made by Plaintiffs’
counsel, Volney Brand, that his availability was limited to three days
during the first week of December and three days during the third week of
December. (Filing No. 151 at 3–4).
(3)
On the evening of November 14, Defendants’ counsel, Michele Anderson,
emailed Mr. Brand to schedule, inter alia, the Rule 30(b)(6) deposition of
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Plaintiff entities. Ms. Anderson stated her preference to conduct the Rule
30(b)(6) deposition on December 15 (the third Monday in December) and
asked that Mr. Brand confirm whether December 15 in Columbus, Indiana,
worked for him. (See Filing No. 162-1 at 1).
(4)
On November 19, having received no response from Mr. Brand, Ms.
Anderson noticed the deposition of Plaintiff entities for December 15. (See
Filing No. 162-2).
(5)
Mr. Brand and Ms. Anderson conferred on December 3 and exchanged
emails memorializing their discussion. Mr. Brand first emailed Ms.
Anderson, stating that his “client’s [sic] object to the dates related to the
subpoenas [she] propose[d] but plan on submitting each deponent for depos
beginning wednesday [sic] of the third week this month.” (Filing No. 1624 at 2). He also stated that Dr. Alexander intended to submit to the Rule
30(b)(6) deposition on Saturday, December 20. Ms. Anderson explained
that she chose the December 15 date pursuant to the Magistrate Judge’s
November 14 Order because she received no response to her November 14
email. (Id. at 1). Ms. Anderson further clarified that she was not available
to depose Plaintiff entities on December 20 and, accordingly, she would not
modify the deposition notice to reflect as much. (Id.). In an apparent effort
to compromise, Ms. Anderson offered to conduct the deposition on
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December 22, 29, or 30 beginning at 9:30 a.m. in her Indianapolis office. 2
She stated that she would issue an amended notice if Mr. Brand agreed to
any of the alternative dates. Mr. Brand never responded to this offer in Ms.
Anderson’s December 3 email and did not appear with his client at the Rule
30(b)(6) deposition on December 15.
II.
Discussion
A.
Sanctions
Defendants argue that because Plaintiffs failed to move for a protective order or
obtain the agreement of Defendants, Plaintiffs’ failure to appear at the properly noticed
Rule 30(b)(6) deposition warrants the imposition of sanctions and an order of contempt.
Plaintiffs counter that because no court order set the deposition for December 15,
Defendants had no grounds to anticipate the appearance of Plaintiffs or their counsel.
Local Rule 30–1(d) requires that attorneys “make a good faith effort to schedule
depositions in a manner that avoids scheduling conflicts.” It further orders the scheduling
party to provide notice to other parties no less than fourteen days prior to the deposition
date. S.D. Ind. L.R. 30–1(d). When a party receives proper notice of its deposition, only
a pending motion for a protective order will excuse it from appearing pursuant to the
notice. Odongo v. City of Indianapolis, No. 1:14-cv-710, 2015 WL 1188769, at *2 (S.D.
Ind. Mar. 13, 2015); Fed. R. Civ. P. 37(d)(2).
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The parties appeared to reach agreement for the remaining fact depositions to occur on
December 17, 18, and 19.
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When a party fails to appear at its properly noticed Rule 30(b)(6) deposition, the
court may, on motion, order sanctions against the offending party. Fed. R. Civ. P.
37(d)(1)(A)(i). When crafting appropriate sanctions, the court may look to those
available under Rule 37(b)(2)(A). Fed. R. Civ. P. 37(d)(3). The court enjoys broad
discretion when deciding whether to award sanctions under Rule 37. Shine v. OwensIllinois, Inc., 979 F.2d 93, 96 (7th Cir. 1992) (citations omitted). The court must,
however, “require the party failing to act, the attorney advising that party, or both to pay
the reasonable expenses, including attorney’s fees . . . , unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” Fed. R.
Civ. P. 37(d)(3).
In opposing Defendants’ motion, Plaintiffs display fundamental
misunderstandings of the Magistrate Judge’s October 31 and November 14 rulings and
the Federal Rules of Civil Procedure. First, Plaintiffs claim they “made clear that both
Plaintiffs’ counsel and the corporate representative would arrange their schedules in
accordance with the Court’s [November 14] Order so that the 30(b)(6) deposition would
occur on Saturday, December 20, 2014.” (Response at 4). Nothing in the November 14
Order authorizes such a brazen attempt by the noticed party to legitimize a unilateral
scheduling of a deposition. The Magistrate Judge ordered the Rule 30(b)(6) deposition to
occur either during the first or third weeks of December. This merely set the time frame
in which the outstanding depositions were to occur. The November 14 Order did not
divest Defendants of their responsibility under Rule 30(b) to issue proper notice stating
the time and place of the deposition. Nor did the October 31 or November 14 orders
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charge Ms. Anderson with any substantive duty exceeding that which Local Rule 30–1(d)
requires.
Ms. Anderson adhered to the Magistrate Judge’s October 31 and November 14
orders and to Local Rule 30–1(d). Following the November 14 pretrial conference, Ms.
Anderson emailed Mr. Brand with her availability for the third week of December. She
stated her preference to depose Plaintiff entities on Monday, December 15, and fact
witnesses on Wednesday and Thursday, December 17 and 18, respectively. She followed
her proposed schedule with a request that Mr. Brand confirm whether the dates worked
for Plaintiffs. With no response by Wednesday, November 19, Ms. Anderson issued
notice setting the Rule 30(b)(6) deposition for December 15. Mr. Brand represents that
on November 19, he “told [Ms.] Anderson that he would provide her the availability of
each of Plaintiffs’ witnesses shortly.” (Response at 3). He finally responded to Ms.
Anderson on December 3 to inform her that his clients plan to be deposed on Saturday,
December 20. Ms. Anderson objected on grounds that she was unavailable that day. In a
final attempt to find a mutually agreeable date, Ms. Anderson offered to depose Plaintiff
entities on December 22, 29, or 30. Mr. Brand did not respond to this offer or move for a
protective order, pursuant to Rule 26(c), against Defendants’ notice of the deposition.
Therefore, Plaintiffs had no legitimate excuse for failing to appear for the noticed
deposition. Accordingly, Defendants are entitled to the reasonable expenses, including
attorney’s fees, they incurred in filing their December 15 motion for contempt and
sanctions.
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B.
Contempt
Defendants also seek an order of contempt against Plaintiffs for failing to obey a
court order. “Civil contempt is ‘a unique civil sanction because its aim is both coercive
and compensatory.” SEC v. Hyatt, 621 F.3d 687, 692 (7th Cir. 2010). As of the date of
this Entry, Plaintiff entities have submitted to a Rule 30(b)(6) deposition, rendering the
coercive aspect of a finding of contempt inapplicable. Thus, the court finds the
imposition of sanctions sufficient to compensate Defendants for filing the present motion
and therefore DENIES Defendants’ motion for a finding of contempt.
III.
Conclusion
For the foregoing reasons, Defendants’ Motion for Contempt and Sanctions
(Filing No. 161) is GRANTED in part and DENIED in part. The court ORDERS
Defendants to file a bill of costs, as contemplated by Rule 37, for those expenses no later
than September 30, 2015. Plaintiffs may file any objections to the bill of costs by
October 14, 2015.
SO ORDERED this 17th day of September 2015.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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