Chudacoff v. University Medical Center Of Southern Nevada et al
Filing
626
ORDER that 560 Motion for Sanctions is DENIED. Signed by Magistrate Judge George Foley, Jr on 2/14/13. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RICHARD CHUDACOFF,
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Plaintiff,
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vs.
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UNIVERSITY MEDICAL CENTER, et al.,
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Defendants.
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__________________________________________)
Case No. 2:08-cv-00863-RCJ-GWF
ORDER
Motion for Sanctions - #560
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This matter is before the Court on Defendants University Medical Center and the Board of
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Trustees of University Medical Center’s Motion for Sanctions (#560), filed on September 17, 2012;
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Plaintiff’s Opposition to Defendants’ Motion for Sanctions (#583), filed on October 4, 2012; and
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Defendants’ Reply in Further Support of Defendants’ Motion for Sanctions (#587), filed on
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October 15, 2012.
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BACKGROUND AND DISCUSSION
Defendants’ Motion for Sanctions (#560) is related to their Emergency Motion to Compel
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Discovery (#547), filed on August 31, 2012, regarding their efforts to notice and take the deposition
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of Plaintiff’s expert witness, Stan Smith. Mr. Smith is an economist who has calculated Plaintiff’s
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alleged loss of past and future earnings allegedly resulting from the Defendants’ wrongful conduct.
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Mr. Smith is based in Chicago, Illinois.
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On July 6, 2012, the District Judge reopened discovery for a period of sixty days following
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the filing of the Plaintiff’s fifth amended complaint which was also filed on July 6, 2012. On
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August 13, 2012, the Defendants’ counsel served a notice of deposition to take Mr. Smith’s
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deposition in Las Vegas, Nevada on August 28, 2012. Defendants’ counsel also served a subpoena
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for testimony and to produce documents on Mr. Smith by delivering the subpoena to Plaintiff’s
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counsel’s office which was listed as the address for Mr. Smith on Plaintiff’s Rule 26(a) witness
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disclosures. Plaintiff’s counsel objected to the subpoena on a number of grounds including that
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Mr. Smith was not available for deposition in Las Vegas on August 28th, that Plaintiff’s counsel
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was not available on other proposed dates, that the subpoena only called for the production of
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documents-not testimony, that Defendants had not tendered the payment of the witness’s fee and
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travel expenses with the subpoena, and that Defendant had been unreasonably dilatory in noticing
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the deposition. Although the Defendants tendered a check in the amount of $2,310 for Mr. Smith’s
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witness fee and/or travel expenses, Plaintiff still refused to agree to a date for the taking of Mr.
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Smith’s deposition.
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Prior to the noticing of Mr. Smith’s deposition, the “MEC Defendants,” who were joined in
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this action by the fifth amended complaint, filed an Emergency Motion to Stay Discovery (#517) on
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August 6, 2012. The MEC Defendants requested that all discovery be stayed until the District
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Court ruled on their motion to dismiss the fifth amended complaint. After this case was reassigned
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to the undersigned Magistrate Judge on December 3, 2012, the undersigned conducted a January
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17, 2013 hearing on pending motions and granted the MEC Defendants’ motion to stay discovery
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pending a decision on its motion to dismiss. If the undersigned had been the assigned magistrate
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judge in this case in August 2012 and had acted on the MEC Defendants’ motion to stay at or near
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that time, he would have likewise granted the motion to stay discovery which would have stayed
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the taking of Mr. Smith’s deposition. Alternatively, if for some reason the Court had decided that
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discovery should go forward while the MEC Defendants’ motion to dismiss was pending, then the
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Court would have required the parties to agree on an appropriate date for the taking of Mr. Smith’s
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deposition (or would have set a date for the taking of the deposition if the parties could not agree)
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and would have ordered the Defendants to pay Dr. Smith’s reasonable travel and lodging expense
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and expert witness fee for his deposition time in accordance with Fed.R.Civ.Pro. 26(b)(4)(E).
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As this Court indicated during the January 17, 2013 hearing, once a decision is rendered on
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the MEC Defendants’ motion to dismiss, the Court will reopen discovery for a reasonable period of
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time, the length and scope of which will be affected by whether MEC Defendants remain parties in
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this case. The Court will, at that time, permit Defendants, if they still desire, to take Mr. Smith’s
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deposition on the conditions set forth in the preceding paragraph. For these reasons, the Court
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denies Defendants’ Motion for Sanctions (#560).
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The Court is compelled, however, to comment on the disparaging emails that were
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exchanged between Plaintiff and Plaintiff’s counsel regarding Defendants’ counsel Ms. Hansen and
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which Plaintiff and Plaintiff’s counsel then forwarded to Ms. Hansen. The circumstances as to how
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this occurred are set forth in Defendants’ Motion to Compel (#547), pgs. 5-7. Defendants have not
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requested that Plaintiff or his counsel be sanctioned for sending these emails to Defendants’
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counsel. Defendants have apparently included the contents of the emails in their motion to
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demonstrate the unprofessional nature of Plaintiff’s counsel’s behavior in his dealings with
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Defendants’ counsel. Plaintiff’s counsel has not addressed the emails in the response to the
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Defendants’ motions to compel or motion for sanctions. He has not asserted that the emails were
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inadvertently sent to Defendants’ counsel. To the extent that Plaintiff’s counsel knowingly sent or
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allowed his client to send the subject emails to Defendants’ counsel, the Court finds Plaintiff’s
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counsel’s conduct to be unprofessional. A repeat of such conduct may warrant the imposition of
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sanctions against Plaintiff or his counsel. See Davis v. Los Angeles West Travelodge, 2010 WL
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623657 (C.D.Cal. 2010) (court imposed sanctions on party’s counsel for unprofessional conduct
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toward the opposing party and his counsel).
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Based on the foregoing,
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IT IS HEREBY ORDERED that Defendants University Medical Center and the Board of
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Trustees of University Medical Center’s Motion for Sanctions (#560) is denied.
DATED this 14th day of February, 2013.
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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge
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