Dixon v. Greyhound Lines, Inc. et al

Filing 78

RULING AND ORDER granting in part 51 Motion for Sanctions as it relates to an award of fees and expenses and DENIED as to any other award of sanctions. Plaintiff's counsel shall pay to Defendant $777.40 to be paid within 14 days of this Order. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 12/22/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

EDWARD D. DIXON

CIVIL ACTION

VERSUS

NO. 13-179-JWD-RLB

GREYHOUND LINES, INC.,
GLI CORPORATE
RISK SOLUTIONS, AND
JAMES HESTER

RULING AND ORDER

Before the Court is Defendants’ Motion to Quash, Request for Expedited Hearing, and
Sanctions (R. Doc. 51). The only matter remaining for the Court’s consideration is the request
for sanctions.
After the close of fact discovery, Defendants filed a Motion for Summary Judgment (R.
Doc. 38), and submitted the affidavit of Alan F. Smith in support of that Motion. In its Order
partially granting summary judgment (R. Doc. 46), the district court found that Plaintiff should
have an opportunity to explore the statements made by Alan F. Smith in his affidavit. (R. Doc.
46). Two days later, the district judge entered a text entry clarifying its previous Order:
[T]he only additional discovery that will be allowed is that Plaintiff Edward D.
Dixon may take the deposition of the Defendants’ Affiant, Alan F. Smith.
Plaintiff shall have thirty (30) days to take said deposition, if he so chooses.
(R. Doc. 47).
The parties convened and agreed to take the deposition of Mr. Smith on October 3, 2014.
(R. Doc. 52 at 2). Correspondence between the parties indicates their discussions were limited to
the deposition of Mr. Smith. (R. Docs. 51-3, 51-7). On October 1, 2014, Plaintiff sent a Notice

of Deposition confirming the October 3, 2014 deposition of Mr. Smith. (R. Doc. 51-3).
However, beyond the parties’ agreement and the district judge’s Order, Plaintiff noticed an
additional October 3, 2014 deposition of Greyhound, and requested that both Mr. Smith and
Greyhound produce numerous categories of documents by the same day. (R. Doc. 52). On
October 2, 2014, Defendants filed the instant Motion seeking an order quashing the deposition of
Greyhound and both requests for documents, and imposing sanctions against Plaintiff for
reasonable expenses and attorney’s fees.
Later that day, this Court issued an Order quashing the deposition of Greyhound and both
requests for documents. (R. Doc. 52). These requests were clearly beyond the scope of the
district judge’s order, which only permitted “a very limited amount of additional discovery” —
the deposition of Mr. Smith. (R. Doc. 52). The Court deferred its ruling on the request for
sanctions as Defendants failed to submit any information regarding expenses incurred in bringing
the Motion. (R. Doc. 52 at 3-4). In accordance with Rule 37 of the Federal Rules of Civil
Procedure, Defendants were ordered to provide an affidavit of reasonable expenses, to which
Plaintiff had an opportunity to respond. (R. Doc. 52 at 3-4).
On October 6, 2014, Defendants timely submitted their Affidavit claiming $777.40 in
fees for the work of two attorneys. (R. Doc. 54).
In response to the Motion and Affidavit, Plaintiff argues the request for sanctions is now
moot as he withdrew his notice of deposition and document requests to Greyhound. (R. Doc. 59
at 1). Otherwise, Plaintiff maintains his 31 requests for documents to Alan Smith were
appropriate as the district judge in “no way” prohibited “Plaintiff from requesting additional

documents of any type” — i.e., the Order “was silent as to . . . any corresponding document
production.” (R. Doc. 59 at 2, 4). Plaintiff’s insistence is not convincing. 1
By continuing to argue that only his discovery requests to Greyhound were
impermissible, Plaintiff willfully disregards this Court’s earlier finding that:
It is without question that the document requests [to Mr. Smith and Greyhound] . .
. as well as any deposition directed to anyone other than Mr. Smith is beyond the
scope of permitted discovery and directly contrary to [the district judge’s] order.
(R. Doc. 52 at 3). Given the lack of ambiguity in the district judge’s Order, the Court again finds
Plaintiff’s interpretation of that Order was not objectively reasonable. (R. Doc. 47). This finding
is further supported by the discovery tactics of Plaintiff’s counsel.
In the days preceding the impermissible requests, discussions between counsel for both
parties show that the parties only anticipated deposing Alan Smith, “[i]n light of Judge
deGravelles ruling.” (R. Doc. 51-6). The parties did not contemplate any other discovery at that
time. Moreover, when Plaintiff emailed the Notices to Defendants at 4:02 p.m. on October 1st
— less than 2 days before the scheduled deposition — he inaccurately described the attached
discovery as the “Notice of Deposition for Alan Smith.” (R. Doc. 51-3 at 1). In reality, the
attachment included two Notices and two corresponding document requests, one to Mr. Smith
and another to Greyhound.
Under these circumstances, the mere issuance of the second deposition notice and both
corresponding requests for production could warrant sanctions under Rule 26(g), as those
requests were not objectively reasonable. See In re Byrd, Inc., 927 F.2d 1135, 1137 (10th Cir.
1991) (imposing sanctions under Rule 26(g) where party’s issuance of invalid discovery requests

1

It seems that in Plaintiff’s mind, for the district judge’s Order to be clear, it would have to explicitly name each
form of discovery that Plaintiff cannot conduct. This is illogical considering that at the time the Order was issued,
discovery had closed. Therefore, absolutely no discovery was permitted. The district judge created an exception by
allowing the deposition of Mr. Smith and no further explanation was needed.

was objectively unreasonable); Mick Haig Prods, e.K. v. Does, 2011 WL 5104095, at *4 (N.D.
Tex. Sept. 9, 2011) (imposing Rule 26(g) sanctions where party issued discovery that was
inconsistent with a court order, as party “could not have reasonably interpreted the language” of
the court’s order as claimed).
Moreover, Plaintiff is incorrect that withdrawal of his discovery to Greyhound negated
Defendants’ Motion for Sanctions, as his document requests to Mr. Smith were also
impermissible and contrary to the explicit Orders of the Court. (R. Doc. 20) (setting June 2, 2013
discovery deadline); (R. Doc. 34) (Order denying Pl.’s request to extend discovery deadline); (R.
Doc. 47) (district judge’s Order clarifying that Pl. may only depose Alan Smith).
Although Plaintiff withdrew his Notice to Greyhound, Defendants’ continued objections
to the document requests were otherwise met with threats:
Get the magistrate in [sic] the phone or don’t, I’ll be there Friday, I’ll expect
records and the court can sort out my motions afterwards and you can live with
the consequences for continuing to withhold documents and you can run the risk
of sanctions, I really don’t care, it’s your license and reputation.
(R. Doc. 51-5 at 1).
The conduct of Plaintiff’s counsel left Defendants with no other alternative than to file
the instant Motion to protect both their client’s and their own professional interests. This is
particularly true in light of Plaintiff’s objectively unreasonable disregard for this Court’s
discovery Orders and the Federal Rules of Civil Procedure, as well as Plaintiff’s threat of
sanctions against defense counsel. See La. State Bar Assoc. Code of Prof. (“I will conduct
myself with dignity, civility, courtesy and a sense of fair play. . . . “I will not use the threat of
sanctions as a litigation tactic.”); LR 83.2.4 (adopting state’s Code of Professionalism).
For the aforementioned reasons, and for those set forth in this Court’s prior Order on this
Motion (R. Doc. 52), the Court finds that Plaintiff’s position was not substantially justified and

was objectively unreasonable. Plaintiff’s counsel shall be required pay Defendants’ reasonable
expenses incurred in bringing the Motion, in accordance with Rules 26 and 37 of the Federal
Rules of Civil Procedure. There are no circumstances that would make such an award of
expenses unjust.
Defendants’ counsel submitted an Affidavit claiming $777.40 in reasonable expenses for
the work of two attorneys. Plaintiff’s counsel has been given a reasonable opportunity to be
heard regarding the awarding of such expenses. Although Plaintiff’s counsel argues against the
imposition of sanctions or fees in general, he does not challenge the amount of fees claimed or
the reasonableness of the hours or hourly rate at issue. The Court also finds that both the amount
of time expended and the hourly rate charged are reasonable based on the undersigned’s review
of the Motion and briefs.
The Court finds that the circumstances support an award of expenses and fees in bringing
the Motion. No sanctions will be ordered at this time. Counsel for Plaintiff is responsible for
paying the expense award.
For the reasons given above,
Defendants’ Motion (R. Doc. 51) is GRANTED IN PART as it relates to an award of
fees and expenses and DENIED as to any other award of sanctions. Plaintiff’s counsel shall pay
to Defendant $777.40 to be paid within 14 days of this Order.
Signed in Baton Rouge, Louisiana, on December 22, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE