Kirk v. Schaeffler Group USA, Inc. et al

Filing 143

ORDER granting 105 Defendants' motion for sanctions. Defense counsel shall file an affidavit on or before February 2, 2015, stating the amount of reasonable attorneys' fees incurred in making this motion. Plaintiff's counsel shall then have seven days to file any response. If Plaintiff's counsel files a response, Defendant shall have seven days to file a reply. Signed on 1/26/15 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
JODELLE L. KIRK,

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Plaintiff,
v.
SCHAEFFLER GROUP USA, INC.,
FAG HOLDING, LLC, and
FAG BEARINGS, LLC,
Defendants.

No. 3:13-cv-5032-DGK

ORDER GRANTING MOTION FOR SANCTIONS
This case arises from Plaintiff Jodelle Kirk’s allegation that Defendants are liable for
introducing trichloroethylene (“TCE”) into the environment near her childhood home,
contaminating the groundwater and causing her to develop a variety of serious illnesses.
Now before the Court is Defendants’ Motion for Sanctions (Doc. 105). Defendants ask
the Court to sanction Plaintiff for allegedly breaching an agreement to reimburse Defendants for
travel costs incurred as a result of Plaintiff’s last minute change in deposition locations. For the
following reasons, the motion is GRANTED.
Background
The factual background of this dispute is as follows. Plaintiff originally agreed to produce
an expert witness on October 5, 2014, at the witness’s office in Clinton Township, Michigan, near
Detroit, Michigan. Defendants duly noticed up the deposition for that date and time. Five days
before the deposition, Plaintiff’s counsel sought to change the location of the deposition to
counsel’s office in Independence, Missouri, a suburb of Kansas City, Missouri. The proposed
change required Gary Roberts, the Los Angeles-based defense attorney scheduled to depose the
witness, to cancel his existing hotel and flight reservations and re-book them to Kansas City.

Defendants agreed to the location change on the condition that Plaintiff agree to pay any
expenses incurred in making the change. After some back and forth between the parties about
how much these changes should cost—Plaintiff contended that Defendants would save money
because the Kansas City based defense attorneys would have no travel expenses, while Defendants
denied that the Kansas City based attorneys were planning to attend the deposition in
Michigan—Plaintiff’s counsel Kenneth McClain agreed to reimburse Defendants “up to $1,100”
in expenses in return for moving the deposition.1
Defendants then issued an amended deposition notice stating it would be held in
Independence, Missouri. That same day Defendants sent Plaintiff documentation showing that
the location change cost Defendants $1,023.63 in additional travel expenses.
Defense counsel Roberts subsequently appeared at the deposition with two Kansas
City-based defense attorneys, Wade Carr and Greg Wolf.2 Mr. McClain, Andrew Smith, and
Lauren McClain represented the Plaintiff at the deposition.
The deposition began with the following exchange:
MR. McCLAIN: I’m making a record here first. We were requested
to pay a cancellation fee and a change fee on the basis that this would
be more expensive, with the specific representation made in writing
that Wade Carr was not coming and Greg Wolf was not coming to this
deposition. As everything in this case, that was a misrepresentation
by lawyers that don’t seem to be able to tell the truth about anything,
and so we’re not paying any bill, so if you want to proceed on that
basis, go ahead, but if you don’t, leave and file a motion, but we’re
not paying any bill, just to let you know.
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On October 1, 2014, Defense counsel Gary Roberts sent an email stating, “[t]he price difference quoted today is
about $1,100 in changing flights and hotels . . . At this time, I am the only one planning to attend the deposition, so
there is no Wade/Greg [other defense attorneys] cost savings. It would be best if we could hear back by noon
tomorrow.” A few hours later, McClain replied, “I don’t believe you. Everyone I’ve met from your firm are liars.
Having said that if you present us with verified bills for changing your flight and hotel we will pay you up to $1,100.
What a bunch of babies you are.”
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Mr. Carr formally appeared at the deposition; Mr. Wolf did not.

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MR. ROBERTS: The representation was that neither Mr. Carr nor
Mr. Wolf were going to attend in Detroit.
MR. McCLAIN: And that they weren’t attending here.
MS. McCLAIN: You said Mr. Wade -- Mr. Carr, or Mr. Carr and Mr.
-- whatever his last name is –
MR. McCLAIN: Wolf.
MS. McCLAIN: They don’t plan on attending, period, in Michigan.
MR. McCLAIN: So it’s a lie, why can’t you guys just tell the truth?
Why do you tell lies when the truth would do, you know? It’s a
cultural problem in your law firm. Everything is a lie, and all of you
are liars, period, so we’re not paying it. So if you want to fight about
that at some other time, fine, but unless you agree on the record that
that’s waived at this time, Mr. Carr is leaving, at which time I’ll pay
your bill. If you want him to stay you’re going to waive the bill,
period.
MR. ROBERTS: We’re not going to waive our claim for the bill, and
Mr. Wade is going to stay here.
MR. McCLAIN: No, he’s not, he’s not.
MR. ROBERTS: Yes, he is.
MR. McCLAIN: No, he’s not. Then we’re not proceeding with the
deposition. It’s your choice.
MR. ROBERTS: Wade is going to stay here.
MR. McCLAIN: Okay. Then you’re waiving the bill.
MR. ROBERTS: No.
MR. McCLAIN: Yes, you are.

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MR. ROBERTS: No.
MR. McCLAIN: Yeah, you are, yeah. It’s not negotiable. The
deposition will end now and we’ll bring this foolishness to the
Judge’s attention, but either you’re going to waive it or we’re done,
end of story.
MR. ROBERTS: No, we’re not waiving it –
MR. McCLAIN: Okay, then we’re done. Go back, fly to San
Francisco and tell the judge about why you did this. We’re not
paying it. So you can either agree or you can go home. It’s up to
you. Dr. Chiodo is here and prepared to testify.
MR. ROBERTS: And I’m prepared to question him.
MR. McCLAIN: Well, I’m not going to pay the bill, and I want that
agreement on the record, because you represented that Mr. Carr was
not going to be here, and he is here.
MR. ROBERTS: We have a disagreement.
MR. McCLAIN: No, we don’t have any disagreement. You
represented on the record that he was not going to be here, which is
why the bill was necessary. I agreed on that basis that if you could
demonstrate that, in fact, this was a charge, then I would pay it as a
matter of courtesy to you, but it was based upon the fact that we
weren’t saving you money with the travel costs of Mr. Carr, which we
are, so you either waive it or we leave.
MR. ROBERTS: We’re not leaving.
MR. McCLAIN: Okay, well, then the deposition is over.
MR. ROBERTS: We’ll take the non-appearance.
MR. McCLAIN: Okay, all right.
Dep. (Doc. 106-5) at 4-7.

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The deposition then began. After the attorneys entered their appearances, the following
exchange occurred.
MR. McCLAIN: I take it by proceeding that you’re agreeing that
we’re not paying the bill because that’s the only reason I’m
proceeding. We’re not paying it.
MR. ROBERTS: I do not agree that we have an agreement on the bill.
We are proceeding.
MR. McCLAIN: Well, I want you to understand that it’s based upon
my statement that I’m not paying it.
MR. ROBERTS: I’ve heard your statement.
MR. McCLAIN: Okay, all right, then if that’s the basis upon which
you’re proceeding, go ahead. Wade, you can sit down. He’s paying
for your time here.
Id. at 8-9.
The witness was then deposed. Defense counsel subsequently wrote Plaintiff’s counsel
requesting reimbursement of $1,023.63 for Mr. Roberts’ additional travel expenses. Plaintiff’s
counsel did not respond and has not paid. Defendants have filed the pending motion for sanctions
asking for $1,023.63 and an award of attorneys’ fees incurred in bringing the motion.
Discussion
As a threshold matter, the Court notes it has the power to hear this dispute and grant the
requested relief. It is well-settled that “[b]y its nature as a court of justice, the district court
possesses inherent powers ‘to manage its affairs so as to achieve the orderly and expeditious
disposition of cases.’” Wescott Agri-Products, Inc. v. Sterling State Bank, Inc., 682 F.3d 1091,
1095 (8th Cir. 2012) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). These powers
include the authority “‘to police lawyer conduct and to guard and to promote civility and

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collegiality among the members of its bar.’” Wescott Agri-Products, 682 F.3d at 1096 (quoting
Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241, 1244 (11th Cir. 2009)).
Defendants argue that they acceded to Plaintiff’s last minute request to change the location
of the deposition on the condition that Plaintiff agree to pay for Defendants’ increased travel costs;
that Plaintiff’s counsel agreed to this arrangement; and that he refuses to honor this agreement.
Mem. in Supp. (Doc. 106) at 6-8. Defendants contend they truthfully stated that Mr. Carr and Mr.
Wolf were not planning to attend the Michigan deposition, but they never made any representation
that the two would not attend the deposition if it were moved to Independence. Id. at 7.
In response, Plaintiff’s counsel argues that making the change “five days in advance of the
scheduled deposition, [gave Defendants] plenty of time to make alternate travel arrangements.”
Opp’n (Doc. 111) at 2. He submits that Defendants’ request that Plaintiff pay for any additional
travel expenses incurred as a result was unusual, but he agreed because he wanted to be reasonable.
Id. He claims he agreed to pay for the additional travel expenses because Mr. Roberts assured
him that there would be no cost savings associated with Mr. Carr or Mr. Wolf. Id. at 3. He
complains “Plaintiff did not agree to reimburse Mr. Roberts if the Kansas City attorneys attended
the deposition.” Id. He argues that since he “gave Defendants the option of having Wade Carr
leave the deposition” and be reimbursed, they “decided to breach the agreement” by proceeding
with the deposition with Mr. Carr present.

Id.

Plaintiff also suggests that “Defendants’

unreasonable and dishonest litigation practices should not be rewarded.” Id.
The Court rules as follows. First, the Court notes that Defendants could have refused
Plaintiff’s request outright—they were under no obligation to move the deposition, but they did the
right thing and tried to accommodate Plaintiff’s request. Additionally, Plaintiff’s expectation that
Mr. Roberts could cancel a plane flight from Los Angeles to Detroit and then rebook it for Los

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Angeles to Kansas City—with hotel accommodations—on five days’ notice for the same amount
of money or less was unrealistic. Defendants conditioning their assent to moving the deposition
on being reimbursed any additional travel expenses was reasonable.

Plaintiff’s counsel’s

intimation that he was somehow doing Defendants a favor by agreeing to reimburse them for the
last minute location change is not well taken.
Second, the parties agreed that in return for Defendants’ consent to move the deposition to
Independence, Plaintiff would reimburse Defendants up to $1,100 for Mr. Roberts’ additional
travel expenses.

Their agreement did not contain any condition that Defendants’ Kansas

City-based attorneys could not attend the Independence deposition. Although Defendants stated
Mr. Wade and Mr. Wolf would not attend the deposition in Michigan (a reasonable decision to
save the client’s money), Defendants never represented that they would not attend the deposition if
it were held in Independence.
Third, the Court rejects Plaintiff’s argument that Defendants breached the agreement
because Plaintiff was willing to reimburse them if Mr. Carr left the deposition. The Court holds
Plaintiff breached the agreement by not doing what Plaintiff promised to do when Defendants
agreed to move the deposition, namely pay Defendants $1,023.63.
Fourth, nothing in the record supports Plaintiff’s suggestion that Defendants somehow
actually saved money by agreeing to relocate the deposition. Granted, moving the deposition
enabled Mr. Carr and Mr. Wolf to attend. But it cost Defendants $1,023.63 for Mr. Roberts’
additional travel expenses, and it is undisputed that he was always going to take the deposition
regardless of where it occurred.
Fifth, Defendants did not engage in “unreasonable” or “dishonest” litigation practices in
this matter, and the Court is not “rewarding” Defendants. The Court is adjudicating a dispute

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about the parties’ agreement to move the location of the deposition and enforcing it.
Sixth and finally, Mr. McClain’s conduct lacked civility before and during the deposition
in describing Defense counsel as “a bunch of babies,” calling them “liars,” and then threatening to
cancel the deposition unless Mr. Carr left. The Court expects attorneys to adhere to the “Tenets of
Professional Courtesy” promulgated by the Kansas City Metropolitan Bar Association. While the
Court recognizes this litigation has been hard-fought, a lawyer must be respectful with opposing
counsel, avoid personal criticism of another lawyer, and not make unfounded accusations of
unethical conduct about opposing counsel.

Accordingly, pursuant to its inherent power to

regulate the conduct of the attorneys who appear before it, the Court sanctions Plaintiff’s counsel
by ordering Mr. McClain to reimburse Defendants their reasonable attorneys’ fees incurred in
bringing this motion.
Defense counsel shall file an affidavit on or before February 2, 2015, stating the amount of
reasonable attorneys’ fees incurred in making this motion. Plaintiff’s counsel shall then have
seven days to file any response. Any response shall be limited to discussing the amount of
reasonable attorneys’ fees incurred and shall not exceed five pages. If Plaintiff’s counsel files a
response, Defendant shall have seven days to file a reply. Any reply shall not exceed five pages.
The Court will then issue an order setting the amount of the sanction. The parties, however, are
welcome to resolve this issue without the Court’s intervention.
For the reasons discussed above, Defendants’ Motion for Sanctions (Doc. 105) is
GRANTED.
IT IS SO ORDERED.
Date:

January 26, 2015

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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