Kerr v. American Airlines Inc.

Filing 42

ORDER: For the reasons stated in the attached order, the motion for sanctions 35 is granted. The Court awards American Airlines the total amount of $1822.26 to be paid by Kerr. Kerr is ordered to appear for his deposition at a date of Americ an Airlines's choosing. Failure to attend this deposition will lead to the imposition of further sanctions, which may include a recommendation of dismissal of the action with prejudice. So Ordered by Magistrate Judge Sanket J. Bulsara on 4/11/2018. (Zhang, Fan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TREVOR A. KERR,
Plaintiff,
ORDER
15-CV-4850-DLI-SJB

-againstAMERICAN AIRLINES INC.,
Defendant.
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BULSARA, United States Magistrate Judge:

Plaintiff Trevor Kerr (“Kerr”) filed this employment discrimination action against
Defendant American Airlines Inc. (“American Airlines”). On November 10, 2017,
American Airlines filed a motion for sanctions after Kerr failed to appear for his
deposition. American Airlines seeks expenses for the deposition and dismissal of the
case (or as an alternative to dismissal, extension of discovery to take Kerr’s deposition).
The Court held a hearing on the motion on March 30, 2018. At the hearing, the Court
denied the requests to dismiss the case and granted an extension of discovery to conduct
Kerr’s deposition. (Minute Order dated March 30, 2018). For the reasons stated below,
the request for monetary sanctions is granted.
Factual Background and Procedural History
Kerr, who was proceeding pro se at the time, commenced this action on August
18, 2015. On October 6, 2016, he filed an Amended Complaint, (Dkt. No. 7), and
Chauncey D. Henry (“Mr. Henry”) filed a notice of appearance on behalf of Kerr, (Dkt.
No. 6). A discovery schedule was set at an initial conference before the Honorable
Steven L. Tiscione and the close of discovery was set for December 29, 2017. (Dkt. No.
18). On August 28, 2017, American Airlines filed a motion to compel various discovery
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items including written responses to its first request for production of documents and
certain interrogatories including requests for information regarding alleged damages.
(Dkt. No. 32). Kerr’s failure to provide responses to these requests forced American
Airlines to reschedule Kerr’s deposition twice. (Dkt. No. 24 at 2 (“Plaintiff’s failure to
provide the requested discovery or respond to efforts to obtain it has caused Defendant
to twice reschedule Plaintiff’s deposition.”)). In his response, Mr. Henry indicated that
the delay in providing discovery was due in large part to Kerr’s failure to return phone
calls to his office and cooperate in providing necessary information. (Dkt. No. 33 at 12).
On September 1, 2017, the case was transferred to the undersigned. On
September 20, 2017, the Court conducted a hearing on the motion to compel. At the
conclusion of the hearing, the Court granted American Airlines’s motion to compel. The
Court further ordered Kerr to appear for his deposition, which had been delayed due to
his failure to participate in discovery. (Minute Order dated September 20, 2017
(“Plaintiff must appear for his deposition and that deposition must be completed within
21 days after he provides a response to the Court’s order granting the Defendants
motion to compel.”)).
The parties agreed to conduct Kerr’s deposition at 10:00 a.m. on October 25,
2017; his deposition was properly noticed. (Dkt. No. 35 at 1). On the scheduled date,
Mr. Henry and both attorneys for American Airlines—Daniel E. Farrington (Mr.
Farrington) and Lauren G. Goetzl (Ms. Goetzl)—appeared, but Kerr did not. (Id. at 2).
Mr. Henry states he notified his client, Kerr, of the deposition. (Id.). All counsel, the
court reporter and the videographer waited 45 minutes beyond the scheduled start time
and Mr. Henry made several unsuccessful attempts to reach Kerr. (Id.). In the two
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subsequent weeks, prior to the filing of the motion for sanctions, Kerr did not respond to
attempts by Mr. Henry to reach him and Kerr did not offer an explanation why he did
not appear for his deposition. (Id.).
On January 22, 2018, a stay was issued pending resolution of the sanctions
motion. (Order dated January 22, 2018). On February 28, 2018, the Court issued an
order to show cause requiring Kerr to explain why he did not appear for his deposition.
(Order dated February 28, 2018). On March 23, 2018, Kerr sent an email to his counsel
in which he stated “this letter is to state the reason for my absent from court on October
25 2017 I had a family emergency in Jamaica WI.” (Dkt. No. 37 at 2). A hearing was
held on March 30, 2018. Kerr at that hearing provided the following explanation for his
non-appearance at his noticed deposition:
At the time, there was a lot of issues happening in my life. My
father was gravely ill and my grandmother died. And all of
this happened in Jamaica. I didn’t even inform my attorney
of what was going on because there was like a lot of turmoil in
my family and I end up -- had to take a trip over to Jamaica to
take care of some stuff. So that’s one of the -- that’s -- that’s
the reason why I didn’t get a chance to attend because I was
going through a separation with my wife. So there was like a
lot of more family problem that I was going through and I
didn’t get a chance to apologize to the -- to the other people
and to my attorney. I had to apologize to the last minute and
I apologize to the Court but there was so much things that was
going on with me and within my family, so that’s what
happened.
I had a nephew who died suddenly in a foreign trip. My niece
had breast cancer. So there was a whole bunch of stuff that
was happening and because I -- I had to go for my
grandmother’s funeral and my father was sick, it kind of threw
off my whole thing and that’s the reason why I didn’t -- I didn’t
get the right -- as I say, I didn’t even inform my attorney of
what was going on at the time because it was -- there was a lot
that was going on for me.
(Transcript of Proceedings from March 30, 2018 (“Tr.”), Dkt. No. 40, 5:7-6:5).
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At the hearing, the Court denied the request to dismiss the case and lifted the
discovery stay. (Minute Order dated March 30, 2018).
Discussion
“A district court has wide discretion to impose sanctions, including severe
sanctions, under Federal Rule of Civil Procedure 37[.]” Design Strategy, Inc. v. Davis,
469 F.3d 284, 294 (2d Cir. 2006). Rule 37(d) is designed to impose sanctions “for
especially serious disregard of the obligations imposed by the discovery rules, even
though [a party] has not violated any court order.” 8B Charles Alan Wright & Arthur R.
Miller et al., Federal Practice and Procedure § 2291 (3d ed. 2010). Rule 37(d) provides
in pertinent part:
[I]f a party . . . fails, after being served with proper notice, to
appear for that person’s deposition . . . the court must require
the party failing to act, the attorney advising that party, or
both to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.1
In other words, where a party fails to appear for a deposition, the rule requires
the Court to award reasonable expenses to the moving party absent substantial
justification or other circumstances suggesting an award would be unjust. Novak v.
Wolpoff & Abramson LLP, 536 F.3d 175, 178 (2d Cir. 2008) (“[C]ourts and
commentators alike have held that the provision requires the award of expenses unless
the disobedient party meets that burden[.]”) (quotations omitted). The burden is on the

The motion only seeks the imposition of sanctions against Kerr, not his counsel.
As such, the Court does not consider imposing sanctions against Mr. Henry. Nor would
there be any basis to impose sanctions on Mr. Henry. He appeared for the deposition
and made multiple attempts to contact Kerr to get him to appear. (Dkt. No. 35 at 2).
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disobedient party, in this case Kerr, to show “that his failure is justified or that special
circumstances make an award of expenses unjust.” Id.
It is undisputed that Kerr was given proper notice of the deposition. (Dkt. No.
35, Ex. 1). Kerr did not appear for the deposition. He did not return his counsel’s calls
on the day of the deposition or several weeks thereafter. Indeed, his counsel, in
connection with the sanctions motion, which was a joint submission, notified the Court
that he could not provide a reason for Kerr’s absence from the deposition. (Dkt. No. 35
(“In the two weeks since October 25, Mr. Kerr has not responded to attempts Mr. Henry
and his office have made to reach him and Mr. Kerr has not offered an explanation for
why he did not appear for his deposition.”)). In that same letter, Mr. Henry stated that
he was considering withdrawing as counsel because of Kerr’s failure to communicate.
(Id. at 3 n.1 (“Mr. Henry reserves the right to move to withdraw from his representation
of Mr. Kerr based on Mr. Kerr’s explanation for his non-compliance and nonresponsiveness to his counsel’s attempts to communicate with him.”)).
It was only after the Court issued an order to show cause did the Court receive
any indication of the reasons why Kerr failed to attend his deposition or prosecute his
case. At the hearing held on March 30, Kerr elaborated on those reasons, and cited a
number of significant family issues and hardships that have befallen him. The Court is
not unsympathetic to Kerr’s personal situation; that is why it declined to recommend
the harsh remedy of dismissal. At the same time, Kerr should have kept his counsel
aware—at some point—of that personal hardship so that his counsel could take the
appropriate steps to adjourn the schedule. “[P]laintiffs are responsible for making
themselves available to their attorney, whether to respond to obligatory discovery or to
take a position on motions made by their adversaries.” Dauphin v. Chestnut Ridge
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Transp. Inc., No. 06-CV-2730, 2009 WL 5103286, at *2 (S.D.N.Y. Dec. 28, 2009)
(adopting report and recommendation). Instead, Kerr did nothing despite constant and
persistent inquires, which because they were unanswered, led everyone, including the
Court, to believe that he had abandoned his case. And the explanation he did give
contained no details about relevant dates and which of the family situations—which
appear to have occurred over an extended period—corresponded with the failure to
attend his deposition. As a result, the Court cannot find that the failure to appear was
substantially justified or any reason why the imposition of expenses would be unjust.
The immediate financial consequence of Kerr’s failure to communicate was that
American Airlines incurred costs from the cancelled deposition. It has sought
reimbursement in the total amount of $2033.51, which consists of $507.50 in attorney’s
fees, and $1526.01 for the conference room rental and the cancellation fees charged by
the court reporter and videographer.
As a general matter, courts in the Second Circuit have consistently awarded
attorney’s fees and costs incurred for a deponent’s failure to appear at a deposition. See,
e.g., Gagasoules v. MBF Leasing LLC, 286 F.R.D. 205, 216 (E.D.N.Y. 2012) (“[T]he
Defendant is entitled to recover reasonable attorney’s [fees] and costs associated with
the portion of the motion for sanctions relating to sanctions against Niblett and Luster
Cote for failure to appear at their depositions pursuant to Rule 37(d).”).
The amount American Airlines is seeking is less than what other parties have
sought for a non-appearance at a deposition. See, e.g., John Wiley & Sons, Inc. v. Book
Dog Books, LLC, 298 F.R.D. 145, 149-50 (S.D.N.Y. 2014) (awarding $4542.30 in fees
and expenses). American Airlines could have sought travel costs to the deposition and
fees for time spent preparing and arguing the sanctions motion. Bey v. City of New
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York, No. 99-CV-3873, 2007 WL 1771557, at *4 (S.D.N.Y. June 18, 2007). But it did
not.2
As to the attorney’s fees, the amount American Airlines is seeking encompasses
the time for two attorneys—Mr. Farrington and Ms. Goetzl. It would be excessive to
grant fees for two attorneys for a deposition in this straightforward case. See, e.g.,
Clarke v. Hudson Valley Fed. Credit Union, No. 14-CV-5291, 2016 WL 884667, at *9
(S.D.N.Y. Mar. 8, 2016) (“[I]t was reasonably appropriate for Clarke to have one
attorney appear in-person to defend Clarke’s deposition, it was unnecessary and
excessive for two attorneys . . . to do so.”). And no explanation is provided in the
sanctions motion why two senior attorneys were needed at Kerr’s deposition. The Court
therefore awards attorney’s fees only for Mr. Farrington.
The “starting point” for determining the amount of attorney’s fees to be paid is
calculation of the “lodestar,” which is “the product of a reasonable hourly rate and the
reasonable number of hours required by the case.” Millea v. Metro-N. R. Co., 658 F.3d
154, 166 (2d Cir. 2011). Both the Supreme Court and the Second Circuit have held that
the lodestar is a “presumptively reasonable fee.” Arbor Hill Concerned Citizens
Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); see Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 553-54 (2010).

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“The Second Circuit has held that when determining the amount of
compensatory sanctions to be awarded, ‘due process requires, at a minimum, that: (1)
the party seeking to be compensated provide competent evidence, such as a sworn
affidavit, of its claimed attorney’s fees and expenses; and (2) the party facing sanctions
have an opportunity to challenge the accuracy of such submissions and the
reasonableness of the requested fees and expenses.’” Knox v. Palestine Liberation Org.,
229 F.R.D. 65, 70 (S.D.N.Y. 2005) (quoting Mackler Prods., Inc. v. Cohen, 225 F.3d 136,
146 (2d Cir. 2000)). American Airlines has provided such evidence by submitting
invoices for the conference room and videographer, and Kerr had opportunity to raise
objections in writing and at the hearing. No objection was presented.
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In determining the lodestar, courts “should generally use the hourly rates
employed in the district in which the reviewing court sits in calculating the
presumptively reasonable fee.” Simmons v. New York City Transit Auth., 575 F.3d 170,
174 (2d Cir. 2009) (quoting Arbor Hill, 493 F.3d at 119) (internal quotations omitted).
“In recent years, courts have approved the following hourly rates for attorneys
practicing in the Eastern District of New York: $200 to $450 for partners in law firms,
$200 to $325 for senior associates, $100 to $200 for junior associates, and $70 to $100
for paralegals.” Hui Lan Weng v. Fancy Lee Sushi Bar & Grill, Inc., No. 15-CV-5737,
2017 WL 5564892, at *2 (E.D.N.Y. Nov. 3, 2017) (quotations omitted), report and
recommendation adopted, 2017 WL 5564593 (Nov. 18, 2017).
On April 6, 2018, the Court ordered supplemental briefing on the hourly rates
and relevant experience of counsel for American Airlines. (See Order dated April 6,
2018). On April 10, 2018, American Airlines responded. (Dkt. No. 41). The submission
explains that Mr. Farrington graduated from law school in 1998 and is the managing
partner and founder of his firm, The Farrington Law Firm, LLC. His hourly rate in this
case is $395. Mr. Farrington’s rate is within the range of acceptable hourly rates for a
partner.
The amount of time spent on the matter (i.e. 45 minutes of waiting) was
reasonable. See, e.g., Bacote v. Riverbay Corp., No. 16-CV-1599, 2016 WL 7496139, at
*2 (S.D.N.Y. Dec. 29, 2016) (“Counsel’s application indicates that, although he spent 2.1
hours waiting . . . he is only requesting compensation for 1.5 hours of attorney time
because he was able to devote some of that 2.1 hours to work on other matters).
The Court therefore awards $296.25 in attorney’s fees to American Airlines ($395
per hour for Mr. Farrington multiplied by 45 minutes or 0.75 hours).
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As to the costs, having reviewed the invoices submitted by American Airlines, the
Court concludes that the costs were documented and reasonable and should be paid by
Kerr. Bacote v. Riverbay Corp., No. 16-CV-1599, 2016 WL 7496139, at *3 (S.D.N.Y.
Dec. 29, 2016) (“Courts routinely order reimbursement of court reporters costs when
imposing sanctions under Fed. R. Civ. P. 37(d)(3).”) (collecting cases).
Conclusion
The Court awards American Airlines the total amount of $1822.26 to be paid by
Kerr. Kerr is ordered to appear for his deposition at a date of American Airlines’s
choosing. Failure to attend this deposition will lead to the imposition of further
sanctions, which may include a recommendation of dismissal of the action with
prejudice. Fed. R. Civ. P. 37(b)(2)(A)(v).

SO ORDERED.
/s/ Sanket J. Bulsara April 11, 2018
Sanket J. Bulsara
United States Magistrate Judge
Brooklyn, New York
April 11, 2018

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