Sibley v. Choice Hotels International, Inc. et al

Filing 120

ORDER denying 116 Motion for Sanctions. For the reasons set forth in the attached Order, Plaintiff's motion for Sanctions under Docket Entry No. 116 is denied in its entirety. So Ordered by Magistrate Judge Anne Y. Shields on 3/7/2016. (Casalini, Rosalinde)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRECIA LORELLE SIBLEY,
Plaintiff,

ORDER
CV 14-634 (JS) (AYS)

-againstCHOICE HOTELS INERNATIONAL, INC.
Defendant.
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ANNE Y. SHIELDS, Magistrate Judge:
This is a diversity case in which Plaintiff claims to have been injured by bed bugs during
a one night stay at Defendants’ hotel (the “Hotel”). The Hotel is identified as being located at
270 West Jericho Turnpike in Huntington Station, New York. Plaintiff alleges a single claim of
negligence resulting in physical and emotional harm. See Docket Entry (“DE”) 1. Presently
before the Court is Plaintiffs’ motion for sanctions under Fed. R. Civ. P. 37(b)(2)(A)(v) and Fed.
R. Civ. P. 37(d)(3). DE 116.
While this would seem to be a straightforward action, counsel have had multiple disputes
over minor filing deadlines, and discovery disputes focused on form instead of substance. Once
again, the current dispute serves only to clutter the docket, and in no way attempts to advance the
case toward a meaningful resolution.
A. DEFENDANT’S ALLEGED CONDUCT
Plaintiff frames the instant motion as a motion for sanctions due to the failure of
Defendant Choice Hotels International, Inc. (“Choice” or “Defendant”) to attend its deposition
on January 26, 2016, and its violation of the discovery order dated December 22, 2015. The
Order that Plaintiff refers to was issued by this Court when addressing a prior discovery dispute.
The Order states:

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In light of the fact that counsel are unable to proceed to bring pretrial discovery to
an end, this Court, in fulfillment of its Rule 1 obligations, enters the following
order governing discovery. All paper and written discovery is deemed closed, and
the parties shall move forward to depositions. Plaintiff shall be deposed first.
After Plaintiff’s deposition, the depositions of Defendants shall go forward. All
depositions, including any third party depositions, are to be completed by
February 1, 2016. See Docket Entry (“DE”) 84.
B. CIRCUMSTANCES SURROUNDING DEFENDANT’S ALLEGED CONDUCT
Defendant Choice was properly noticed to appear at its oral deposition scheduled for
January 19, 2016. Defendant requested an adjournment, which Plaintiff granted, and thereafter
re-noticed the deposition for January 26, 2016. Defendant once again requested an adjournment.
Plaintiff refused to consent. Defense Counsel advised Plaintiff’s attorney three times prior to
January 26, 2016 that the Choice representative would not be able to attend a deposition on
January 26, 2016. Defense Counsel further advised Plaintiff’s attorney that the Choice
representative would be available two days later, on January 28, 2016, or on a date after
February 1, 2016. Defense Counsel further advised Plaintiff that the Choice representative could
also be available by video conference. Plaintiff refused to consent to any adjournment, and,
despite knowing that the Choice representative would not be attending, held the deposition on
January 26, 2016. DE 116; DE 117. Thus, Plaintiff, with full knowledge that Defendant would
not appear, essentially “staged” a deposition attended by him, the court reporter, but no witness.
On that same day, after Choice, unsurprisingly, did not appear at the deposition, Plaintiff filed a
motion for a default judgment, motion to strike the answer, motion for attorney’s fees and
expenses. All motions were denied as improper. See DE 101; see also Electronic Order dated

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February 2, 2016. On January 27, 2016, the day after Plaintiff filed her motions which were
denied as improper, the Defendant submitted a request, on behalf of both parties, to initiate a
phone conference pertaining to the deposition that was currently in dispute. See DE 106. In
response to Defendant’s request, the Court scheduled a phone conference for February 9, 2016,
which Plaintiff moved to adjourn until February 11, 2016. See Electronic Order dated February
1, 2016; see also DE 107. On February 11, 2016, a conference call was held with this Court’s
chambers, where outstanding discovery issues were resolved. Despite knowing that Defendant
had attempted to seek Court intervention prior to the expiration of the discovery deadline,
knowing that the Court had scheduled a date to discuss such dispute, and, in fact, knowing that at
the February 11, 2015 telephone conference, the parties were given additional time to complete
the outstanding deposition, Plaintiff nevertheless filed a motion for sanctions due to Defendant’s
inability to meet the February 1, 2016 deadline. Indeed, on February 12, 2016, Plaintiff filed the
instant motion, seeking to impose sanctions for Defendant’s violation of the discovery order and
Defendant’s failure to appear at the “staged” deposition.
C. DISPOSITION OF THE MOTION
I.

The Parties’ Positions
Plaintiff asserts that Choice willfully failed to attend its deposition on January 26, 2016,

and must be sanctioned. DE 116. Choice objects on the basis that Plaintiff is responsible for any
costs associated with the deposition because Plaintiff knew Choice was unable to attend. Choice
reasons it informed Plaintiff three times prior to January 26, 2016 that it would not be able to
attend the deposition, and it attempted to reschedule the deposition and/or have a deposition via
video conference. DE 117
II.

Legal Principles

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Rule 37 of the Federal Rules of Civil Procedure sets forth a variety of sanctions that may
be imposed upon parties who fail to obey court-ordered discovery. Such sanctions range from
orders compelling discovery, to striking of pleadings, to outright dismissal. Ehret v. New York
City Dept. of Social Services, sib, 92 (E.D.N.Y 1984). The harshest sanctions are appropriate
only in the event of repeated defiance of express court orders, or a blatant failure to prosecute.
Ehret, 102 F.R.D at 92; Litton Systems, Inc. v. American Tel. and Tel. Co., 700 F.2d 785, 828
(2d Cir. 1983)(noting that the harshest sanctions, such as dismissal should be used sparingly and
only when necessary in “extreme circumstances”). Thus, dismissal is only appropriate “after
consideration of alternative, less drastic sanctions.” La Barbera v. ASTC Laboratories, Inc.,
2007 WL 1423233, at *2 (E.D.N.Y 2007) (citations omitted).
Federal Rule of Civil Procedure 37(b)(2)(A) gives the Court authority to issue sanctions
for a party’s failure to obey a discovery order. In addition, Rule 37(b)(2)(C) provides that instead
of or in addition to imposing sanctions for a party’s failure to comply with a court order, “the
court must order the disobedient party, 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.” Fed. R. Civ. P.
37(b)(2)(C); see also Ingenieria Esterella, S.A. v. Morisseau, 2015 WL 5794334, at *3
(E.D.N.Y. 2015).
Federal Rule of Civil Procedure 37(d) allows the Court to issue sanctions for a party’s
failure to attend its own deposition. Similar to Rule 37(b)(2)(C), Rule 37(d)(3) states, “[i]nstead
of or in addition to [] sanctions, the court must require the party filing 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

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expenses unjust.” Fed. R. Civ. P. 37(d)(3).
III.

The Motion is Denied
Local Civil Rule 37.3(a) states that “Prior to seeking judicial resolution of a discovery or

non-dispositive pretrial dispute, the attorneys for the affected parties or non-party witness shall
attempt to confer in good faith in person or by telephone in an effort to resolve the dispute, in
conformity with Fed. R. Civ. P. 37(a)(1).” See Local Civil Rule 37.3(a). Additionally, this
Court’s rules state that “Counsel must first undertake a good faith effort to resolve any discovery
disputes . . . without court intervention. Where attorneys cannot agree upon resolution of a
discovery dispute, they shall initiate a conference call with this court by calling chambers.” See
Judge Shields’ Individual Practice Rules, Section VI(C).
Plaintiff’s attorney certifies that he has conferred in good faith with Choice to resolve this
issue without Court action. See DE 116. However, the facts do not support that assertion. To the
contrary, it was Defendant’s attorney who attempted to work with Plaintiff’s counsel,
unfortunately, to no avail. Thus, Defendant’s attorney explained to Plaintiff that Choice was
unable to appear at the deposition, and offered multiple solutions to accommodate Plaintiff.
Instead of working with opposing counsel to reschedule the deposition, Plaintiff’s attorney chose
to conduct it while knowing it would be fruitless. Moreover, although Plaintiff knew an issue
existed as to the parties’ failure to agree on a deposition date, he did not initiate a phone
conference with the Court, as the Court’s rules require for all discovery disputes. Instead, he took
it upon himself to stage a deposition when he knew the Defendant would not appear. Indeed, a
letter seeking the Court’s guidance was not filed until after Plaintiff filed motions seeking
sanctions, and, notably, the letter was filed by Defendant, not Plaintiff, on behalf of both parties.
Moreover, even though a telephone conference took place on February 11, 2016, where the

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Court allowed for additional time to complete the remaining deposition, Plaintiff filed the instant
motion for sanctions. Plaintiff’s motions seeking sanctions under 37(b)(2)(A) and 37(d)(3),
therefore, can be considered nothing less than frivolous and vexatious, and arguably made in bad
faith.
a. No Sanctions Under Fed. R. Civ. P. 37(b)(2)(A)(v) are Warranted
Plaintiff’s attorney comes to this Court seeking sanctions for Defendant’s failure to
comply with this Court’s Order, which states that all depositions must occur before February 1,
2016. Defendant’s attorney offered several alternatives, including: 1) agreeing to produce the
Defendant on January 28, 2016, 2.) offering to conduct a video deposition, or 3) producing the
Defendant on a date after February 1, 2016. Plaintiff’s attorney refused all suggestions,
preferring instead to ignore Counsel and initiate motion practice in earnest. Strikingly, Plaintiff’s
attorney could not be bothered to place a conference call prior to January 26, 2016 to ensure that
discovery moved smoothly, but was eager to seek sanctions - in the form of a default judgment
(which was denied as improper) against Defense counsel for failing to appear at the January 26,
2016 deposition. DE 102. Indeed the motion was filed on the very same day of the staged
deposition. The Court points out that on that date, this Court’s order directing depositions to be
completed by February 1, 2016 had not yet been violated. Plaintiff’s attorney could have initiated
a conference call prior to January 26, 2016 instead of moving for sanctions, had he been truly
interested in working through discovery disputes and resolving the case. Indeed, had Plaintiff’s
attorney worked with the Defendant’s attorney, or sought this Court’s guidance, instead of
staging a deposition, the Court’s order may not have been violated.
After Plaintiff filed a motion seeking sanctions on January 26, 2016, it was Defendant
who filed a motion, on behalf of both parties, seeking the Court’s guidance in resolving the

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discovery dispute. DE 106. As the Court granted the motion and scheduled a conference call for
February 9, 2016 to discuss the dispute, which was adjourned to February 11, 2016 at the request
of Plaintiff, it was inappropriate, and arguably absurd, for Plaintiff’s attorney to move for
sanctions due to Defendant’s inability to complete discovery by February 1, 2016. This is
especially true since the February 11, 2016 telephone conference resulted in an agreement
between both Parties to work together to complete the outstanding deposition, and the Court had
granted the Parties additional time to do so. Based on his conduct, it is clear that Plaintiff’s
attorney would rather spend his time, and his client’s resources, on writing motions for sanctions
against his adversary instead of working with her to resolve the case. This is behavior which the
Federal Rules of Civil Procedure does not condone. See Comment to 2015 Amendment to Rule 1
(noting that “the parties share the responsibility” to employ the rules consistently with the
standards of Rule 1, and that “[e]ffective advocacy is consistent with -- and indeed depends upon
-- cooperative and proportional use of procedure”).
Furthermore, this Court finds that Plaintiff is not entitled to any reasonable expenses
under Federal Rule of Civil Procedure 37(b)(2)(C). Plaintiff’s attorney has contributed to, and
arguably caused, any violation of the discovery order. Indeed, any expenses that resulted due to
the violation of this Court’s discovery order are solely attributable Plaintiff’s inability to follow
the Federal Rules, the Local Rules, and this Court’s Rules. As such, it would be unjust to have
Defendant pay any expenses.
b. No Sanctions Under Fed. R. Civ. P. 37(d)(3) are Warranted
The Court finds that Choice’s failure to attend the deposition was indeed substantially
justified. Choice is headquartered in Maryland, which has limited its representative’s ability for a
full day of travel to New York area for his deposition. DE 117. Choice was noticed on January

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19, 2016 for an out of state deposition to occur on January 26, 2016. It is entirely reasonable for
Choice to seek a short adjournment of the deposition. Defendant’s attorney not only advised
Plaintiff of the fact that Choice would be unable to appear, but also provided alternative options
and alternative dates to conduct the deposition. Moreover, even if Choice’s failure to attend was
not substantially justified, the circumstances surrounding Choice’s failure to attend the
deposition would make an award of expenses unjust. Indeed, Plaintiff’s failure to work with
Defendant’s attorney or seek court assistance prior to the date of the deposition makes his
demand for Defendant to be sanctioned or pay attorney fees and expenses entirely unreasonable.
The unreasonableness is amplified by the fact that Plaintiff’s attorney went forward with a
deposition he knew would be fruitless. To hold otherwise would be inconsistent with the Federal
Rules of Civil Procedure, as it would encourage even more animosity and gamesmanship
between counsel instead of a willingness to work together to resolve the case.
Conclusion
For the reasons set forth above, Plaintiff’s motion set forth in Docket Entry No. 116 is
denied in its entirety.
Dated: March 7, 2016
Central Islip, New York

SO ORDERED:

/s/ Anne Y. Shields
Anne Y. Shields
United States Magistrate Judge

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