Lopez v. Whirlpool Corporation

Filing 27

ORDER granting in part and denying in part 24 Motion to Compel. Plaintiff's counsel is hereby sanctioned $2,000. Discovery shall be reopened until 3/11/2019 solely for the purpose of deposing Plaintiff. Dispositive motions may be filed by 3/25/2019. Defendant's request to move the pretrial conference and the trial ready deadline is denied. The Parties are reminded that the trial date of 7/15/2019 is firm. Signed by Magistrate Judge Mark A Roberts on 2/26/2019. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
HEATHER LOPEZ,
Plaintiff,

No. 18-cv-22-LRR
ORDER

vs.
WHIRLPOOL CORPORATION,
Defendant.
____________________

This matter is before the Court on Defendants’ Motion for Sanctions Against
Plaintiff’s Counsel, to Compel Plaintiff’s Deposition, and to Extend Deadlines. (Doc.
24.)

Plaintiff timely filed a resistance.

(Doc. 25.)

For the following reasons,

Defendant’s motion is GRANTED IN PART and DENIED IN PART.
I.

FACTUAL BACKGROUND

This is an action alleging unlawful employment practices in violation of Title VII
and the Iowa Civil Rights Act. Discovery closed on February 8, 2019. The dispositive
motion deadline was February 11, 2019. Trial will begin on July 15, 2019. 1
Defendant’s motion details the difficulties it has faced in attempting to depose
Plaintiff. These difficulties included lack of communication by Plaintiff’s counsel, lastminute changes to the schedule, and overall lack of urgency in pursuing discovery in
accordance with the Court’s trial setting order. Ultimately, Defendant’s counsel traveled
to Iowa twice unsuccessfully for the purpose of deposing Plaintiff. Plaintiff’s counsel
seeks refuge in inclement weather, health concerns, and other professional commitments
in January and February of 2019. I am not unsympathetic to any of these reasons for
postponing a deposition. However, Plaintiff’s response ignores the fact that the fall of
1

Defendant’s motion notes the trial ready date. The Parties should remember they have a firm
trial date.

2018 was wasted largely due to his unresponsiveness and failure to cooperate in
scheduling. In October and November of 2018, Plaintiff’s counsel was first unresponsive
and then unwilling to commit to depositions because of other matters, despite the
impending close of discovery.
Defendant’s counsel traveled to Iowa on January 21, 2019 for Plaintiff’s
deposition. On January 22, 2019, Plaintiff’s counsel cancelled the deposition just as it
was scheduled to commence. Defendant’s counsel attempted to schedule Plaintiff’s
deposition for January 24. Plaintiff’s counsel initially agreed to that date, but then
cancelled the next day. Defendant’s counsel traveled to Iowa again on January 28 to
depose Plaintiff on January 30. Plaintiff’s counsel unilaterally cancelled the deposition
on January 29. Plaintiff’s counsel attributed this cancellation to Plaintiff’s difficulty in
arranging childcare for sick children and the cold weather. On January 29, Plaintiff’s
counsel was then unable or unwilling to confirm a single day prior to the close of
discovery when he would make his client available for deposition that Defendant could
rely upon. 2
The excuses offered by Plaintiff’s counsel might justify a last-minute cancellation.
This record, however, shows two expensive, aborted attempts to depose Plaintiff caused
by her counsel’s last-minute, unilateral decisions and a troubling unwillingness or
inability to schedule a single deposition during the discovery period. Plaintiff also
engages in some unavailing “whataboutery,” complaining about Defendant’s discovery
responses earlier in the case. However, Plaintiff has not filed any motion regarding
Defendant’s discovery replies and that issue is not before the Court.
Defendant moves the Court for the following relief:
•
•

Monetary sanctions against Plaintiff’s counsel in the amount of $10,013.71;
An order compelling Plaintiff’s deposition within two weeks of this order;

2

On February 4, Plaintiff’s counsel notified Defendant’s counsel of additional availability.
Defendant’s counsel’s skepticism about the certainty of these dates reasonably precipitated the
instant motion.

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•
•
•
•

An order extending the current discovery deadline for the purpose of taking
Plaintiff’s deposition;
An order prohibiting Plaintiff from deposing Defendant’s witnesses;
An order extending the dispositive motion deadline to three weeks after
Plaintiff’s deposition; and
An order continuing the final pretrial conference and the “trial ready”
deadlines.
II.
DISCUSSION

While Defendant focuses on 28 U.S.C. § 1927, Federal Rule of Civil Procedure
37(d) explicitly deals with the failure of a party to appear at a properly noticed deposition.
“The 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). Sanctions may include, among other things, “striking
pleadings in whole or in part, staying further proceedings until the order is obeyed,
dismissing the action or proceeding in whole or in part, [or] rendering a default judgment
against the disobedient party.” Fed. R. Civ. P. 37(d)(3) (incorporating portions of Fed.
R. Civ. P. 37(b)(2)(A) (internal numbering omitted)). Moreover, “[i]nstead 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.
Defendant’s motion does not attach the notices of any of the depositions; however,
the email correspondence reflects such notices were sent.

(See Doc. 24-1 at 2.)

Moreover, nowhere does Plaintiff complain about the lack of notice regarding the
depositions dates that were set. Although Plaintiff asserts Defendant failed to meet and
confer as required by Local Rule 37, I conclude the affidavit of Lavanga V. Wijekoon
and the recitation of the efforts to resolve this matter contained in Defendant’s motion is
sufficient.
Federal courts have “wide discretion” to fashion an appropriate sanction for
discovery violations. This discretion narrows as the severity of the sanction
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increases. Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citing Heartland
Bank v. Heartland Home Fin., Inc., 335 F.3d 810, 817 (8th Cir. 2003)). I cannot
conclude that Plaintiff’s counsel acted in bad faith or deliberately tried to foil Defendant’s
efforts to depose his client. Rather, it appears Plaintiff’s counsel failed to diligently meet
his obligations to make his client available for depositions. Moreover, because of weather
conditions and health issues that prevailed at the time of the January 30 deposition, not
all the fault for the failure to appear at both depositions falls on Plaintiff’s counsel, so an
award of sanctions in the entire amount sought is not appropriate. In addition, the Eighth
Circuit has found that an award of fees for time spent pursuing sanctions under Fed. R.
Civ. P. 37(d) is not appropriate. See Ranger Transp., Inc. v. Wal–Mart Stores, 903 F.2d
1185, 1188 (8th Cir.1990). Therefore, this Court concludes that Defendant is not entitled
to time spent preparing the motion for expenses. For these reasons, I conclude that an
award of the entire amount of fees and expenses sought by Defendant would be unjust
under Rule 37(d).
Nevertheless, I conclude a sanction of $2,000 is reasonable and warranted as a
sanction against Plaintiff’s counsel. Defendant seeks $3,882.82 for the fees and expenses
associated with the first cancelled deposition. (Doc. 24 at 10, items 1-5.) I have
discounted this amount because the weather may have contributed to the inability to
conduct depositions. Plaintiff, however, offers insufficient explanations as to why the
deposition could not have occurred at some point during the three days Defendant’s
attorney was in Cedar Rapids for the first deposition. Such amount is ordered payable
to Defendant Whirlpool Corporation to defray its expenses resulting from the conduct of
Plaintiff’s counsel.
As mentioned above, one of Defendant’s bases for its motion is 28 U.S.C. § 1927,
which provides that “[a]ny attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so multiplies the proceedings in
any case unreasonably and vexatiously may be required by the court to satisfy personally
the excess costs, expenses, and attorneys’ fees reasonably incurred because of such
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conduct.” Sanctions are appropriate under Section 1927 “when attorney conduct, viewed
objectively, manifests either intentional or reckless disregard of the attorney’s duties to
the court.” Lee v. First Lenders Ins. Servs., Inc., 236 F.3d 443, 445 (8th Cir. 2001)
(citation omitted). For example, in Lee, the court sanctioned a plaintiff’s attorney who
filed a class action without doing proper pre-filing investigations, and then unilaterally
dismissed the case after the parties engaged in a year and a half of expensive discovery
practice, which “multiplie[d] the proceedings . . . vexatiously and unreasonably” within
the meaning of § 1927. Id. see also Gundacker v. Unisys Corp., 151 F.3d 842, 849 (8th
Cir. 1998) (Section 1927 sanctions appropriate when attorney “disobeyed court orders,
violated his duty as an officer of the court by making false representations, spoke to at
least one member of the press concerning . . . an ongoing, sealed qui tam action, and
made various threats directed at the court”). I find that Plaintiff’s counsel’s failure to
timely produce Plaintiff for a deposition, while frustrating and not substantially justified
under Rule 37(d), did not manifest an intentional or reckless disregard for his duties to
the Court. Therefore, sanctions under Section 1927 are not appropriate.
In conclusion, Defendant was diligent in its efforts to depose Plaintiff prior to the
close of discovery. Defendant would be prejudiced if it were not permitted to depose
Plaintiff and file a motion for summary judgment, should it prove warranted. Therefore,
the deadlines are extended as follows:
1) Discovery shall be reopened until March 11, 2019 solely for the purpose of
deposing Plaintiff.3

Plaintiff’s counsel will make Plaintiff available for

deposition in Cedar Rapids, Iowa, unless the Parties mutually agree otherwise.
The Parties are ordered to cooperate to select a mutually agreeable date. If

3

Plaintiff has not moved the Court for any relief. Although Plaintiff’s prayer (Doc. 25 at 11)
says “it is reasonable to allow the deadline to be extended to allow Plaintiff to take the deposition
of the two defense witnesses,” no such motion was made. LR 7(e) states that a resistance to a
motion may not include a separate motion or a cross motion. Such relief must be pursued
separately be a new motion.

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they cannot agree on a date, Defendant shall propose three dates and Plaintiff
may select the most convenient of those three dates.
2) Dispositive motions may be filed by March 25, 2019.
Defendant’s request to move the pretrial conference and the trial ready deadline is
denied. The Parties are reminded that the trial date of July 15, 2019 is firm.
III.

CONCLUSION

Defendant Whirlpool Corporation’s Motion for Sanctions Against Plaintiff’s
Counsel, to Compel Plaintiff’s Deposition, and Extend Deadlines (Doc. No. 24) is
granted in part and denied in part. Plaintiff’s counsel is hereby sanctioned, as set forth
above. The scheduling order is hereby amended to establish the new deadlines set forth
above.
IT IS SO ORDERED this 26th day of February, 2019.

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