Felts v. Reed

Filing 74

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions 60 is DENIED. Signed by District Judge John A. Ross on 10/8/21. (JAB)

Case: 4:20-cv-00821-JAR Doc. #: 74 Filed: 10/08/21 Page: 1 of 4 PageID #: 277

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SARAH FELTS,
Plaintiff,
vs.
LEWIS REED,
Defendant.

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No. 4:20-cv-00821-JAR

MEMORANDUM AND ORDER
This matter is before the Court upon Plaintiff’s Motion for Sanctions. (Doc. No. 60).
Defendant Lewis Reed did not appear at his deposition. As such, Plaintiff claims sanctions are
proper under Federal Rule of Civil Procedure 37(d). Defendant’s counsel argues sanctions are
not appropriate under these circumstances because he informed Plaintiff’s counsel that he would
not be available on the noticed date and had not yet had time to meet with his client. For the
reasons set forth below, the motion will be denied.
Factual Background
The following facts are relevant to the instant motion. On July 1, 2021, Plaintiff’s counsel
Lisa Hoppenjans emailed Defendant’s counsel, requesting dates on which Defendant would be
available for a deposition. Steven Kratky, Defendant’s counsel responded not with available
dates, instead inquiring as to why Plaintiff wished to depose Mr. Reed in advance of making a

Case: 4:20-cv-00821-JAR Doc. #: 74 Filed: 10/08/21 Page: 2 of 4 PageID #: 278

settlement offer. 1 Ms. Hoppenjans responded the next day that Plaintiff intended to use
information obtained during the deposition to craft the settlement demand.
On July 8, Mr. Kratky replied that he had “not yet had the opportunity to meet and confer
with [his] client,” but knew Defendant would not be available until the week of July 19 because
of his duties as President of the Board of Aldermen. (Doc. No. 61-1 at 4). Four days later, Ms.
Hoppenjans asked if Mr. Kratky had any dates for the deposition. Mr. Kratky responded that still
had not met with Defendant and therefore did not know when he would be available. Mr. Kratky
also did not know when he would be able to meet with Defendant but believed his client would
not be available until after July 19.
On July 14, Ms. Hoppenjans yet again requested a date for Mr. Reed’s deposition. Mr.
Kratky responded:
For the third time now, I cannot and will not know President Reed’s availability
for a deposition until I meet with him which will not be until next week at the
earliest. Your fixation on his deposition is both curious and troubling, as it
suggests a motive beyond resolving the legal issues in [sic] raised in your client’s
complaint.
(Doc. No. 61-1 at 2). Later that day, Plaintiff’s counsel Anthony Rothert sent Mr. Kratky a notice
for Mr. Reed’s deposition, to be taken on July 27, 2021 at 9:30 am. (Doc. No. 61-1 at 14).
On July 15, Mr. Kratky responded that he already had a deposition scheduled for July 27
and he would inform Plaintiff’s counsel of his availability next week. (Doc. No. 61-1 at 18). Mr.
Rothert responded later that day that Plaintiff’s counsel may be able to accommodate a later date,
but to “Please ensure that your client knows to appear if we do not reschedule.” Id. Then, Mr.
Rothert forwarded Mr. Kratky an email from the court reporter confirming the scheduling of

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Mr. Kratky states that “Defendant’s counsel changed on July 1, 2021….” (Doc. No. 62 at 1).
However, Mr. Kratky entered an appearance for Defendant on June 25, 2021. (Doc. No. 43).

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Defendant’s deposition on July 27, 2021. Id. at 20-21. Mr. Kratky responded that “This must be
a mistake” as he already had a deposition scheduled that day. Id. at 20. Mr. Rothert responded
that Plaintiff’s counsel was having difficulty scheduling court reporters on short notice, they
“waited two weeks for available depo dates” and they “will try to accommodate any availability
you provide for later that week….” Id. This was the last communication between counsel on the
topic of Defendant’s deposition prior to July 27, the noticed date for the deposition.
On July 27, Plaintiff’s counsel appeared for the videoconference deposition. The
deposition began at 10:00 a.m., but neither Defendant nor his counsel appeared. Id. at 29. Ms.
Hoppenjans called Mr. Kratky, who informed her that Defendant would not appear at the
deposition.
Plaintiff now moves for sanctions pursuant to Federal Rule of Civil Procedure 37(d).
Plaintiff requests payment of the fees for the court reporter and transcription of the attempted
deposition, attorney’s fees for Ms. Hoppenjans to wait for Defendant to appear at the deposition,
and attorney’s fees for Plaintiff’s counsel to prepare the motion for sanctions.
Discussion
Pursuant to Federal Rule of Civil Procedure 37(d), the Court may 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). Having reviewed the arguments of the parties, the Court concludes that
sanctions are not warranted here. Mr. Kratky mismanaged this situation. He claims “he did
everything he could to get dates from President Reed in the narrow time frame….” (Doc No. 62
at 2). Mr. Kratky attempted to meet with Defendant in person to discuss the case and dates for a
deposition but was unable to schedule a meeting. Mr. Kratky did not call or email Defendant or
his staff to discuss the deposition. This feeble attempt is hardly “everything” Mr. Kratky could

Case: 4:20-cv-00821-JAR Doc. #: 74 Filed: 10/08/21 Page: 4 of 4 PageID #: 280

have done. In the four weeks between Mr. Kratky’s first email to Plaintiff’s counsel and the
noticed deposition, Mr. Kratky provided no dates on which his client would be available for a
deposition. Despite Mr. Rothert telling Mr. Kratky to “ensure that your client knows to appear if
we do not reschedule,” Mr. Kratky did not attempt to reschedule the deposition prior to the
noticed date, file a protective order, or appear with his client at the deposition.
Nevertheless, the Court concludes sanctions are not warranted in these circumstances.
Mr. Kratky was only recently appointed as Defendant’s counsel in this case. Mr. Kratky
informed Plaintiff’s counsel that he was unavailable on July 27, 2021. Defendant’s failure to
appear was not intentional or willful and was instead the result of a misunderstanding.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Sanctions [60] is DENIED.
Dated this 8th day of October, 2021.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE