STARWOOD HOTELS & RESORTS WORLDWIDE, INC. v. BIBB

Filing 5

OPINION & ORDER to Appear for Deposition and to Show Cause; that Deft shall appear for deposition on 5/19/11 at 10:00 a.m., etc.; immediately following the deposition, Deft shall be required to show cause as to why he should not be held in contempt, etc.; Pltf's motion for an award of fees is granted in part, etc.; Pltf's request for a finding of comtempt is denied without prejudice pending Deft's proffer at the Order to Show Cause Hearing. Signed by Magistrate Judge Michael A. Shipp on 5/6/11. (jd, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STARWOOD HOTELS & RESORTS
WORLDWIDE, INC.,
Plaintiff,
v.
GEORGE BIBB,
Defendant.

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Civil Action No. 10-5732 (DRD) (MAS)

OPINION AND ORDER TO APPEAR
FOR DEPOSITION AND TO SHOW
CAUSE

This matter comes before the Court by way of Plaintiff Starwood Hotels & Resorts
Worldwide, Inc.’s (“Plaintiff” or “Starwood”) motion for contempt and sanctions against
Defendant George Bibb (“Defendant” or “Bibb”). (Docket Entry Number (“Doc. No.”) 1 (“Pl.’s
Moving Br.”).) Defendant did not oppose Plaintiff’s motion.
For the reasons expressed below, Plaintiff’s motion is granted in part and denied in part
without prejudice.
I.

STATEMENT OF FACTS
The parties are well-versed in the underlying facts and, as such, the Court will address

only those facts relevant to the instant motion. This matter arises out of an underlying personal
injury action currently pending in the Northern District of Georgia, Atlanta Division. The
plaintiff in the underlying Georgia action, Jason N. Gordon (“Mr. Gordon” or “Gordon”), filed a
negligent security claim after he was allegedly attacked in the lobby of one of Starwood’s
Atlanta hotels by unknown third parties. (Pl.’s Moving Br. 2.) Bibb, a college friend of
Gordon’s, was listed by Gordon’s attorney as a witness to the alleged attack. Id. Gordon’s

counsel refused to assist Starwood in scheduling Bibb’s deposition in the underlying Georgia
case so Starwood served Bibb with a deposition subpoena issued by the United States District
Court for the District of New Jersey.1
Starwood sent a letter and subpoena to Bibb on September 30, 2010, demanding his
appearance at a deposition scheduled on October 19, 2010, at 11:00 a.m., in Fort Lee, N.J. (Pl.’s
Moving Br. 3.) Bibb received the letter and subpoena via personal service at his residence on
October 2, 2010. (Id.) Mr. Gordon’s counsel was also served with a notice of Bibb’s scheduled
deposition. (Id. at 3.) Despite receiving notice of the deposition, neither Bibb nor Mr. Gordon’s
counsel appeared on the scheduled date. (Id. at 4.) No objection to the subpoena was filed nor
was any notice given that Bibb could not or would not attend the deposition. (Id. at 3.)
At approximately 5:00 p.m. on October 19, 2010, six hours after the scheduled
deposition, Bibb notified counsel for Starwood that “something came up at work,” preventing
him from attending the deposition. (Id. at 6.) Starwood, however, asserts that this explanation is
inexcusable as “[t]he subpoena required Mr. Bibb to travel approximately five miles from his
home” and he received “more than two weeks advance notice of the deposition.” (Id. at 5.) In
addition, Starwood alleges that the failure of Mr. Gordon’s counsel to appear confirms that
neither he nor Bibb had any plans to appear for the deposition in the first instance. (Id. at 6.) As
Starwood asserts, “[i]f it was truly a last minute emergency, how did Mr. Gordon’s counsel know
he did not have to travel to New Jersey and appear for the deposition[?]” (Id.)

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It is worth noting that Starwood filed a motion to compel Mr. Gordon’s deposition after he
failed to appear for his deposition in the underlying case. The U.S. District Court for the
Northern District of Georgia granted the motion and sanctioned Mr. Gordon and his attorney in
the amount of $890. (Pl.’s Moving Br. 3.)
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Plaintiff requests that this Court enter an Order imposing the following sanctions:
(1) an order of contempt against George Bibb, pursuant to Fed. R. Civ. P. 45, for failure
to comply with a subpoena;
(2) . . . reimbursement for all of its costs and expenses incurred in attending the
deposition, in the amount of $3,311.00, plus the costs of filing the instant complaint
(at least an additional $750); and
(3) an order compelling Bibb to appear for a deposition at a time convenient to
[Starwood].
(Id. at 1-2.)
II.

LEGAL STANDARD & ANALYSIS
Under Federal Rule of Civil Procedure 45(c)(3)(A)(ii), an individual “who is neither a

party nor a party’s officer” cannot be required “to travel more than 100 miles from where that
person resides” in order to comply with a subpoena. Fed. R. Civ. P. 45(c)(3)(A)(ii). In light of
this requirement, a subpoena should be issued by “the court for the district where the deposition
is to be taken . . . .” Fed. R. Civ. P. 45(a)(2)(B). In the event that a person who has been served
with a subpoena fails to obey the subpoena, and does not provide an adequate reason for doing
so, the issuing court may hold that person in contempt. Fed. R. Civ. P. 45(e).
Under Federal Rule of Civil Procedure 30(d)(2), the Court may enter an order imposing
“an appropriate sanction – including the reasonable expenses and attorney’s fees incurred by any
party – on a person who impedes, delays, or frustrates the fair examination of the deponent.”
Fed. R. Civ. P. 30(d)(2). Failure to comply with a subpoena must be excused in instances where
the subpoena violates the limitations imposed by Federal Rule of Civil Procedure 45(c)(3)(A)(ii).
Fed. R. Civ. P. 45(e). In the absence of such a violation, a sanction is appropriate if no
“adequate excuse” exists as to why the subpoena was not obeyed. See id.; Kupritz v. Savannah

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Coll., 155 F.R.D. 84, 89 (E.D. Pa. 1994) (contempt not appropriate when “adequate excuse”
provided).
Before entering a finding of contempt, due process requires that the individual to be
sanctioned is afforded notice and an opportunity to be heard. Harris v. City of Phila., 47 F.3d
1311, 1322 (3d Cir. 1995). “[A] civil contempt proceeding is characterized by remedial
measures for the benefit of the complainant.” N.J. Bldg. Laborers Statewide Benefit Funds v.
Torchio Bros., Inc., 2009 U.S. Dist. LEXIS 10267, at *3 (D.N.J. Feb. 11, 2009). In instances
where the cause for contempt is failure to comply with a valid court order, “it is appropriate to
give notice by order to show cause and to hold a hearing.” Harris, 47 F.3d at 1322.
A finding of civil contempt is appropriate in instances where the Court finds that: “(1) a
valid court order existed, (2) [there was] knowledge of the order,” and (3) the order was
disobeyed without adequate reason. Torchio Bros., Inc., 2009 U.S. Dist. LEXIS 10267, at *4
(quoting Harris, 47 F.3d at 1326). The Court’s power to find civil contempt is discretionary and
should be exercised with caution.” United States v. Richlyn Lab., Inc., 817 F. Supp. 26, 28 (E.D.
Pa. 1993) (citing Littlejohn v. Bic Corp., 697 F. Supp. 192 (E.D. Pa. 1988)).
In the present case, the subpoena was validly issued by the District of New Jersey
pursuant to its authority under Federal Rule of Civil Procedure 45(a)(2)(B). In addition, the
record indicates that adequate notice was provided to both Bibb and Mr. Gordon’s counsel.
Furthermore, as is evidenced by Bibb’s explanation that “something came up at work,” it is clear
that Bibb received notice of the scheduled deposition. As Starwood correctly notes, “[a] simple
phone call would have allowed defense counsel to work around the alleged conflict.” (Pl.’s
Moving Br. 6.) Based on a careful consideration of the foregoing, the Court finds it appropriate
to order Defendant’s deposition to take place at the courthouse immediately followed by an
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Order to Show Cause hearing. In addition, the Court finds good cause to order reimbursement of
fees, including but not limited to travel fees and, at a minimum, a portion of the Plaintiff’s
attorney’s fees in connection with the October 19, 2010 deposition. However, the Court will
deny without prejudice Plaintiff’s request for a finding of contempt pending Defendant’s proffer
at the Order to Show Cause hearing.
III.

CONCLUSION
The Court having carefully considered the pleadings, and for good cause shown,
IT IS on this 6th day of May, 2011,
ORDERED THAT:
1. Defendant shall appear for a deposition on May 19, 2011 at 10:00 a.m. in the jury
room of the undersigned (Martin Luther King Jr. Federal Bldg. & U.S. Courthouse,
50 Walnut Street, Newark, NJ 07102, Courtroom 2C).2
2. Immediately following the deposition, Defendant shall be required to show cause
as to why he should not be held in contempt for failure to appear for his
originally noticed deposition.
3. Plaintiff’s motion for an award of fees is granted in part. The Court will decide on an
appropriate award after the Order to Show Cause hearing.
4. Plaintiff’s request for a finding of contempt is denied without prejudice pending
Defendant’s proffer at the Order to Show Cause hearing.

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The parties shall arrange the court reporter.
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5. Counsel for Plaintiff shall serve a copy of this Order upon Defendant and provide
proof of service to the Court.

s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES MAGISTRATE JUDGE

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