Layne Christensen Company v. The Purolite Company

Filing 560

MEMORANDUM AND ORDER denying 507 Motion of Matthew L. Levine and The Purolite Company for Limited Reconsideration of the Courts October 6, 2011 Order; denying 546 Plaintiffs Motion for Leave to File Surreply in Opposition to Defendants Motion for Reconsideration and to File Under Seal; denying 555 Defendants Motion for Leave to File Under Seal. Movants have shown no basis to reconsider 452 the order of October 6, 2011. Plaintiffs have shown no good cause or extraordinary circumstances to justify the filing of a sur-reply. The denial of the motion to file a surreply makes defendant's motion for leave to file under seal unnecessary. Notwithstanding its denial of these three motions, the Court on its own motion provides a mech anism for the withdrawal of the sanction previously entered against Mr. Levine. See Memorandum and Opinion for further details about the Court's rulings and the withdrawal mechanism. Signed by Magistrate Judge Gerald L. Rushfelt on 12/30/2011. (bw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAYNE CHRISTENSEN COMPANY,
and DR. ARUP SENGUPTA,
Plaintiffs,
v.

CIVIL ACTION
No. 09-2381-JWL-GLR

BRO-TECH CORPORATION, d/b/a
THE PUROLITE COMPANY,
Defendant.
MEMORANDUM AND ORDER
The Court has under consideration three motions that have been referred for disposition: (1)
Motion of Matthew L. Levine and The Purolite Company for Limited Reconsideration of the Court’s
October 6, 2011 Order (ECF No. 507); (2) Plaintiffs’ Motion for Leave to File Surreply in Opposition to Defendant’s Motion for Reconsideration and to File Under Seal (ECF No. 546); and (3)
Defendant’s Motion for Leave to File Under Seal (ECF No. 555). For the reasons set out below, the
Court denies all three motions, but upon its own motion enters relief against a sanction.
I.

Relevant Factual Background
By Memorandum and Order dated October 6, 2011, the Court granted in part and denied in

part a motion to compel filed by Plaintiffs.1 The Court sanctioned Mr. Levine personally for directing a deponent not to answer questions in direct contravention of Fed. R. Civ. P. 30(c)(2).2 The
Court found the conduct sanctionable under Fed. R. Civ. P. 30(d)(2), which grants the courts discretion to impose appropriate sanctions “on a person who impedes, delays, or frustrates the fair
examination of the deponent.” Mr. Levine and his client, Defendant Purolite Company, now jointly

1

Layne Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL, 2011 WL 4688836, at *1 (D.
Kan. Oct. 6, 2011).
2

Id. at *7-8.

seek reconsideration of the order imposing the sanction against him personally.3 Plaintiffs oppose
the motion.4 Defendant has filed a reply brief.5 Plaintiffs thereafter moved for leave to file a surreply under seal;6 thus prompting a motion by Defendant for leave to file a brief in opposition under
seal.7
II.

Motions For Leave
Both parties seek to file briefing under seal – a sur-reply for Plaintiffs and a brief in

opposition by Defendant. Plaintiffs want to file a sur-reply, because “recent factual developments
and new information relevant to [the reconsideration] motion has become available.”8 Neither the
Federal Rules of Civil Procedure nor the Rules of Practice of the United States District Court for the
District of Kansas provide for filing a sur-reply. In fact, D. Kan. Rule 7.3(c) provides only for
responses and replies to motions. But, as previously stated to the parties, the Court may grant leave
to file a sur-reply in extraordinary circumstances upon a showing of good cause.9 Here, Plaintiffs
have shown neither good cause nor extraordinary circumstances to justify the filing of a sur-reply.
Accordingly, the Court denies Plaintiffs leave to file their sur-reply under seal or otherwise, and
denies the motion by Defendant for leave to file a brief in opposition under seal, as unnecessary.

3

See generally, Mot. Recons. (ECF No. 507); Mem. Supp. (ECF No. 512).

4

See Pls.’ Opp’n Mot. Recons. (ECF No. 533).

5

See Reply Mem. Supp. (ECF No. 544).

6

See Mot. File Surreply Under Seal (ECF No. 546).

7

See Def.’s Mot. File Under Seal (ECF No. 555).

8

Mot. File Surreply Under Seal at 1.

9

See Layne Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL, 2011 WL 3880830, at *1
n.5 (D. Kan. Aug. 31, 2011).
2

III.

Motion For Reconsideration
The Federal Rules of Civil Procedure do not provide for motions for reconsideration.10 The

Court, however, “has the inherent power to reconsider its interlocutory rulings” and should do so
when “error is apparent.”11 The District of Kansas, furthermore, has promulgated a local rule, D.
Kan. Rule 7.3(b), which addresses reconsideration of non-dispositive rulings. Pursuant to Rule
7.3(b), motions seeking reconsideration of a non-dispositive order must be based on “(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct
clear error or prevent manifest injustice.” Whether to grant or deny reconsideration lies within the
Court’s sound discretion.12 The movant has the burden to show an adequate reason to reconsider
the prior order of the Court.13
In this case, Defendant and Mr. Levine argue that sanctioning him personally results in
manifest injustice.14 The Tenth Circuit has not defined “manifest injustice” within the context of
a motion to reconsider.15 One source defines the term as a “direct, obvious, and observable error in
a trial court.”16 Courts have held that a party may obtain reconsideration on grounds of manifest

10

Warren v. Am. Bankers Ins., 507 F.3d 1239, 1243 (10th Cir. 2007).

11

Id.

12

Sonnino v. Univ. of Kan. Hosp. Auth., 221 F.R.D. 661, 663 (D. Kan. 2004).

13

Cotracom Commodity Trading Co. v. Seaboard Corp., 193 F.R.D. 696, 697 (D. Kan. 2000).

14

Mot. Recons. at 1; Mem. Supp. at 1, 9-12.

15

Cf. Tri-State Truck Ins., Ltd. v. First Nat’l Bank of Wamego, No. 09-4158-SAC, 2011 WL
4691933, at *3 (D. Kan. Oct. 6, 2011) (addressing manifest injustice within context of motion to
reconsider under Fed. R. Civ. P. 59(e)).
16

Black’s Law Dictionary (9th ed. 2009).
3

injustice only by demonstrating that the injustice is “apparent to the point of being indisputable.”17
Defendant and Mr. Levine primarily argue that a personal sanction is inappropriate, because
he acted in good faith and believed his arguments were warranted under existing law.18 Those
reasons, however, were adequately conveyed in the briefing on the underlying motion to compel.
The Court, moreover, sanctioned Mr. Levine personally under Fed. R. Civ. P. 30(d)(2), which does
not require a finding of bad faith before imposing a sanction. As the Court concluded in its memorandum and order, Mr. Levine had no justifiable basis for instructing the deponent to not answer
questions. The directions not to answer contravened Rule 30(c)(2) and appropriately resulted in a
Rule 30(d)(2) sanction. There is no manifest injustice in imposing a Rule 30(d)(2) sanction on the
facts of this case.
Defendant and Mr. Levine contend that his conduct was not sanctionable because it does not
constitute intentional or reckless disregard of his duties to the court.19 That standard, however, relates to sanctions under 28 U.S.C. § 1927.20 The Court sanctioned Mr. Levine under Rule 30(d)(2),
not § 1927. It thus did not address whether his conduct manifested an intentional or reckless disregard of his duties to the Court. Nor did it need to make that finding. Sanctions under Rule 30(d)(2)
do not require that level of misconduct. Sanctions are warranted under that rule when any person
“impedes, delays, or frustrates the fair examination of the deponent.” Imposing a Rule 30(d)(2)
sanction without addressing the § 1927 standard does not result in manifest injustice.

17

See Tri-State Truck Ins., Ltd., 2011 WL 4691933, at *3 (citations omitted).

18

Mot. Recons. at 1; Mem. Supp. at 1.

19

See Mem. Supp. at 11 (citing RTC v. Dabney, 73 F.3d 262, 265 (10th Cir. 1995)).

20

See Dabney, 73 F.3d at 265-66.
4

Movants also argue that Mr. Levine did not intentionally obstruct, frustrate, or delay the
deposition.21 But he unquestionably and intentionally instructed the deponent not to answer. That
intentional conduct impeded, frustrated, and delayed the fair examination of the deponent. It was
unnecessary. And it caused additional expense to complete the deposition. That warranted an
appropriate sanction under Rule 30(d)(2). Had counsel stated his objections and allowed his client
to answer as provided in the rules, there would have been no need to resume the deposition at a later
date after a ruling on a motion to compel. That opposing counsel had indicated an intent to compel
the testimony does not excuse the directions not to answer. Rule 30(c)(2) is clear in this respect.
Although Mr. Levine took affirmative steps to help facilitate the underlying motion to compel by
encouraging opposing counsel to establish a full record of the questions sought to be asked,
attorneys do not fulfill their duties under Rule 30(c) by facilitating a later-filed motion to compel.
Facilitating the testimony at the initial deposition may indeed moot any need for a motion to compel.
The defense arguments do not carry the burden to show manifest injustice resulting from the
sanction.
Defendant and Mr. Levine next argue that the personal sanction is inappropriate because he
believed in good faith that the questioning had become unreasonably embarrassing, annoying, and
oppressive to the deponent.22 The Court explained in its memorandum and order, such a belief
should have prompted a motion under Rule 30(d)(3), not directions to not answer. Although the
Court found one of the questions posed to the deponent appeared “to have been a ploy merely to
embarrass or annoy,” Mr. Levine had instructed the deponent not to answer other questions well

21

Mot. at 1; Mem. Supp. at 1, 10.

22

Mem. Supp. at 11.
5

before that one. Under the federal rules, moreover, even a question intended to embarrass or annoy
the deponent is insufficient to justify a direction not to answer, unless the direction is necessary to
preserve a privilege, to enforce a court-imposed limitation, or to present a Rule 30(d)(3) motion.
Those circumstances do not exist here.
Defendant and Mr. Levine continue to misconstrue Fed. R. Civ. P. 30(d)(3). They state that
he directed the deponent not to answer questions “in light of his understanding of Fed. R. Civ. P.
30(d)(3), which provides, ‘[a]t any time during a deposition, the deponent or a party may move to
terminate or limit it on the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party.”23 They claim that his
instructions not to answer were merely intended to limit the deposition as permitted under Rule
30(d)(3).24 But that argument ignores the operative word – “move” – in the quoted language from
Rule 30(d)(3). The rule allowed him “to move to . . . limit” the deposition, not to unilaterally limit
it without a motion. The heading for Rule 30(d)(3) – Motion to Terminate or Limit – provides
further support that a motion is necessary.
Defendant and Mr. Levine also argue that the personal sanction “will have future consequences to his law practice, including in connection with future pro hac vice applications before
other federal and state courts.”25 He does not explain how this qualifies as manifest injustice, even
if true. Nor does he explain how a monetary sanction imposed in a discovery dispute affects his
ability to proceed pro hac vice in other cases. The sanction imposed in this case would not affect

23

Id. at 5 (emphasis provided my movants).

24

See id.

25

Id. at 11.
6

Mr. Levine’s ability to proceed pro hac vice in a later case filed here.26 The Court does not view the
monetary sanction imposed for a Rule 30(c)(2) infraction as impacting Mr. Levine’s pro hac vice
status in this Court. Although Mr. Levine engaged in sanctionable conduct under Rule 30(d)(2), his
misunderstanding of Rule 30(d)’s requirements does not call into question his qualifications to
practice law in this Court. Nor does he or Defendant identify any other court where his professional
integrity would be affected. A sanction under Rule 30(d)(2) does not result from any disciplinary
proceedings or a charge of unprofessional conduct. It is a procedural sanction to determine which
party or attorney should in fairness bear the monetary cost of disputed discovery.
Defendant and Mr. Levine essentially quarrel with the severity of the sanction imposed –
contending that the public admonishment represented by the Court’s order should be sufficient to
sanction him.27 He states that the admonishment is sufficient to reprimand and deter his conduct,
and points out that the Court did not personally sanction counsel for Plaintiffs even though the
Court’s order also admonished that attorney’s conduct. Many factors go into a decision to impose
sanctions. Sanctions against different attorneys for different conduct does not make the Rule
30(d)(2) sanction imposed against Mr. Levine for violations of Rule 30(c)(2) inappropriate. While
a public admonishment may be sufficient to deter and reprimand Mr. Levine, Rule 30(d)(2) clearly
contemplates transferring reasonable expenses to the sanctioned person. Plaintiffs should not be
financially responsible for reconvening the deposition that was halted due to the improper directions

26

Through D. Kan. Rule 83.5.4, this Court may permit attorneys who are not admitted to
practice in this Court to enter an appearance for a particular case, as was done by Mr. Levine in this
case. The affidavit required by this rule for admission pro hac vice does not require identification
of discovery sanctions like the one imposed here.
27

See Mem. Supp. at 2.
7

to the deponent not to answer questions. Rule 30(d)(2) identifies the person to be sanctioned as the
person who impedes, delays, or frustrates the fair examination of the deponent. Given his
instructions to the deponent, that person is Mr. Levine. Neither the current briefing nor the briefing
on the underlying motion to compel provides any basis to place that financial burden on anyone but
Mr. Levine or Defendant or both. There is no manifest injustice in placing the financial burden for
the reconvened deposition on Mr. Levine.
Defendant and Mr. Levine indicate that Plaintiffs will not bear the costs of the additional
deposition, if the Court lifts the personal sanction against him.28 This implies that someone – most
likely Defendant itself – is willing to pay the costs of the reconvened deposition. Nothing in the
Court’s sanction prohibits Defendant or anyone else from paying the sanction for Mr. Levine or
reimbursing him for the monetary sanction imposed against him. Such matters are between him and
his client or whoever may volunteer to pay the monetary sanction. In any event, these concerns provide no reason to lift the sanction.
In summary, Defendant and Mr. Levine have shown no adequate ground to reconsider the
sanction imposed against him. He has not shown manifest injustice. They have shown no direct,
obvious, or observable error with respect to the sanction. Accordingly, the Court denies the Motion
of Matthew L. Levine and The Purolite Company for Limited Reconsideration of the Court’s
October 6, 2011 Order (ECF No. 507). For the reasons stated previously, the Court also finds moot
and therefore denies Plaintiffs’ Motion for Leave to File Surreply in Opposition to Defendant’s
Motion for Reconsideration and to File Under Seal (ECF No. 546) and Defendant’s Motion for
Leave to File Under Seal (ECF No. 555).

28

See id. at 11.
8

Notwithstanding its denial of these three motions, the undersigned magistrate judge upon his
own motion considers whether or not the sanction in question should stand or be modified. Had the
parties and their counsel addressed their discovery dispute by a defense motion to terminate or limit
the deposition of Don Brodie, pursuant to Fed. R. Civ. P. 30(d)(3), the Court would not have entered
a “sanction” against Mr. Levine, pursuant to Rule 30(d)(2). It would have ordered an “award of
expenses,” however, pursuant to Rules 30(d)(3)(c) and 37(a)(5). Given the absence of any briefing
about this seemingly insignificant difference in wording, the Court otherwise finds no obvious
reason for it. The Court has reviewed the briefing by Defendant and its counsel, however, seeking
for a withdrawal of “sanctions” that supposedly stain his good record and reputation as an attorney.
As already noted, this Court does not share their view that the sanction carries that kind of blemish
upon his professional character. But it also finds no need to risk that possibility against the fears of
defense counsel, which may or may not be realistic before some other court. Without belaboring
the point, the Court believes that it can exercise its own discretion and will do so as follows: Upon
its own motion the Court can withdraw the sanction previously entered against Matthew L. Levine,
once he and Defendant have filed an affidavit or other documentary evidence to show that Plaintiff
has been and will be held harmless against the costs of the continued deposition of Don Brodie,
previously ordered. Accordingly, the Court will consider entering an order of withdrawal upon the
filing of such evidence.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 30th day of December, 2011.

s/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge
9