Shibata et al v. Swingle et al

Filing 95

DECISION AND ORDER that plaintiff's letter motion (Dkt. No. 89 ) is DENIED; and it is further ORDERED, that defendants' motion for costs and attorney's fees (Dkt. No. 63 ) is GRANTED, and that defendants recover from plaintiffs, j ointly and severally, the amount of $892.00 in attorney's fees, and $150.00 in costs, for a total amount of $1,042.00, and that the clerk enter judgment in defendants' favor and against plaintiffs in that amount; and is further ORDERED, that plaintiffs' motion for sanctions (Dkt. No. 77 ) is DENIED. Signed by Magistrate Judge David E. Peebles on 10/10/2018. (sal )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
TOMO SHIBATA and YAYOI
SHIBATA,
Plaintiffs,

Civil Action No.
3:16-CV-1349 (BKS/DEP)

v.
ROGER A. SWINGLE and RAS
ENTERPRISES,
Defendants.
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFFS:
TOMO SHIBATA, Pro Se
YAYOI SHIBATA, Pro Se
117 E 8th Street
#3
Alturas, CA 96101
FOR DEFENDANTS:
POPE, SCHRADER LAW FIRM
2 Court Street, 4th Floor
P.O. Box 510
Binghamton, NY 13902
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

ALAN J. POPE. ESQ.

DECISION AND ORDER
This is a diversity action brought by pro se plaintiffs Tomo and Yayoi
Shibata, who now reside in California, against defendants Roger A.
Swingle and RAS Enterprises, two New York residents. Generally
speaking, in their amended complaint plaintiffs assert common law breach
of contract claims against the defendants. The events giving rise to
plaintiffs' claims arise out of a proposed residential construction project for
real property owned by plaintiffs, and located in New York.
As a result of plaintiffs' failure to comply with a discovery order
entered in the action, and specifically plaintiff Tomo Shibata's refusal to
appear in New York for deposition as directed by the court, their amended
complaint in this action has been dismissed, without prejudice to
defendants' right to seek an award of costs and attorney's fees incurred in
connection with efforts to secure plaintiffs' deposition. Currently pending
before the court are cross-motions of the parties. In their motion,
defendants request an award of costs and attorney's fees, pursuant to the
court's earlier order, based upon plaintiff Tomo Shibata's failure to appear
for deposition. In their cross-motion, plaintiffs seek an order awarding
sanctions in their favor and against defendants' counsel, as a complete
offset to any award of costs and attorney's fees in defendants' favor. For
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the reasons set forth below, I will grant defendants' motion and award a
total of $990.00 in their favor and against plaintiffs, and deny plaintiffs'
motion for an award of sanctions against defendants' counsel. 1
I.

BACKGROUND
Plaintiffs commenced this action against defendants, both of whom

are based in New York, on November 14, 2016. Dkt. No. 1. At issue in the
action is an agreement between the parties concerning work to have been
performed by defendants on real property owned by plaintiffs and located
in Danby, New York. 2 See generally Dkt. No. 40. Although plaintiffs
currently reside in California, at the relevant times, at least one of them—
Tomo Shibata—lived in Ithaca, New York. Id. at 2.
On August 29, 2017, I conducted a telephonic Rule 16 conference in
the action. Text Minute Entry dated Aug. 29, 2017. During that conference,
I informed plaintiffs that, in all likelihood, their depositions would have to
be conducted within this district.

Also pending is plaintiffs' letter motion requesting to submit additional evidence
to the court before ruling on defendants' request for attorney's fees. Dkt. Nos. 89, 90.
In light of the recent order of District Judge Brenda K. Sannes, which dismissed
plaintiff's amended complaint, and for the reasons contained in this decision and order,
that letter motion is denied.
1

The subject property was purchased by plaintiffs shortly prior to October 2013.
Dkt. No. 40 at 2. According to plaintiffs' complaint, the property was being prepared to
house a modular home, described as "a factory built house already purchased
separately." Id.
2

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By letter dated January 23, 2018, defendants' counsel advised the
court that a discovery dispute had arisen between the parties involving the
location of plaintiff Tomo Shibata's deposition. Dkt. No. 42. Specifically,
defendants' counsel recounted that, after attempting to confer with plaintiff
Tomo Shibata regarding deposition dates, he sent a formal letter, dated
January 17, 2018, scheduling her deposition for February 5, 2018, to be
held in the Northern District of New York. Id. at 1. In response, plaintiff
Tomo Shibata advised defendants' counsel that she would only submit to
a telephonic deposition, and that she would not travel to this district. Id.
A telephone conference was conducted by the court on January 29,
2018, to address the dispute. Text Minute Entry Dated Jan. 29, 2018.
During that conference, plaintiff Tomo Shibata professed her financial
inability to return to New York to attend her deposition. Id. To permit the
court to validate her claim of economic hardship, plaintiff Tomo Shibata
was directed to submit reliable information substantiating her claim that
she was financially unable to defray the expense associated with being
deposed in New York, to include information regarding any assets, such
as real estate, held by plaintiffs. Dkt. No. 46. On February 16, 2018,
plaintiff Tomo Shibata responded by filing limited financial information. Dkt.

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Nos. 47, 48. Defendants filed a reply to plaintiffs' submission on February
23, 2018. Dkt. No. 49.
Based upon the limited financial information supplied by plaintiffs, I
issued a decision and order on February 26, 2018, directing that plaintiff
Tomo Shibata appear for deposition within the Northern District of New
York, at a time and location to be agreed upon between her and
defendants' counsel, not later than March 31, 2018. Dkt. No. 50. Plaintiffs
were specifically warned that, "[i]n the event Ms. Shibata does not comply
with this order, I will recommend that plaintiffs' complaint in this action be
dismissed[.]" Id. at 10.
Following the issuance of that order, defendants' counsel, Alan J.
Pope, Esq., sent an e-mail to plaintiff Tomo Shibata on February 28, 2018,
offering seven dates between March 10 and 30, 2018, for her deposition.
Dkt. No. 54-1 at 2, 12. That was followed by a second e-mail from
defendants' counsel to plaintiff Tomo Shibata, dated March 5, 2018,
stating, "I have not had a response to my email of February 28. Please
respond today." Id. at 2, 14. A third e-mail was sent by defendants'
counsel to plaintiff Tomo Shibata on March 11, 2018, advising that only
two of the originally-proposed dates remained available to conduct her
deposition before the March 31 deadline, and stating, "[i]f you do not
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intend on coming to New York for your deposition as ordered, just let me
know and I will send you a Stipulation of Discontinuance of the present
action." Id. at 2, 16. On March 12, 2018, not having heard from plaintiff
Tomo Shibata, defendants' counsel sent her a notice, by e-mail and United
States Mail, scheduling her deposition for March 30, 2018, at 10:30 a.m. in
Binghamton, New York. 3 Id. at 1, 5-6. Plaintiff Tomo Shibata failed to
appear for that noticed deposition. Id. at 2.
Among plaintiffs' efforts to avoid being deposed in the action was the
interposition of a motion to stay the case, filed on April 2, 2018—after the
deadline for the defendant Tomo Shibata to appear under the court's
earlier order. Dkt. No. 52. That motion was denied by the court on April 18,
2018. Dkt. No. 57.
On April 6, 2018, defendants moved, in a motion styled as seeking
the entry of summary judgment, for dismissal of plaintiffs' amended
complaint. Dkt. No. 54. As a result of that motion, I issued a report on May
9, 2018, recommending that plaintiffs' amended complaint be dismissed
for failure to appear for deposition, without prejudice to defendants' right to
seek costs and attorney's fees incurred in connection with their efforts to

Plaintiff Tomo Shibata acknowledges that she did not respond to Attorney
Pope's e-mails. Dkt. No. 58 at 3.
3

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secure plaintiffs' deposition in this matter. Dkt. No. 61. That report and
recommendation was approved by District Judge Brenda K. Sannes on
October 9, 2018. Dkt. No. 91.
Defendants have now moved for an award of costs and attorney's
fees incurred as a result of plaintiff Tomo Shibata's failure to appear for
deposition, by motion filed on May 23, 2018. Dkt. No. 63. Plaintiffs have
opposed that motion and countered with an application on August 22,
2018, seeking an award of sanctions against defendants' counsel. Dkt.
Nos. 77, 78. Plaintiffs' motion is based upon their contention that through
his actions, Attorney Pope effectively led plaintiffs to believe that they were
no longer required to appear for deposition pursuant to defendants' notice
of deposition and as ordered by the court. Id. In essence, plaintiffs' motion
seeks a finding that they should not be required to pay any costs and
attorney's fees pursuant to defendants' motion. Both of those motions are
now fully briefed and before the court.
II.

DISCUSSION
A.

Defendants' Motion for Costs and Attorney's Fees

In their motion for an award of costs and attorney's fees, defendants
seek recovery in the amount of $2,009.00. Dkt. No. 63; see also Dkt. No.
87. According to the application, that sum represents the fees incurred in
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connection with attempts to require plaintiffs to appear for deposition, as
well as the preparation of papers in support of defendants' dismissal
motion. Id. Included in that sum is a request to recover $150.00,
representing an expense incurred in connection with a court reporter who
appeared for the failed deposition of plaintiff Tomo Shibata. Id. Plaintiffs
have opposed defendants' motion, arguing that the hourly rates at which
the fee application is calculated are excessive, and that defendants are
only entitled to reimbursement of fees incurred in connection with efforts to
schedule plaintiffs' deposition, but not for the preparation of their dismissal
motion. Dkt. No. 78.
The recommendation that plaintiffs' amended complaint in this action
be dismissed was based both upon Rule 41(b) Federal Rules of Civil
Procedure, in light of plaintiffs' failure to prosecute, and Rule 37(b) for
plaintiff Tomo Shibata's failure to appear for deposition as ordered by the
court. Dkt. No. 61 As I pointed out in my prior report and recommendation
dated May 9, 2018, Rule 37(b) contains a fee-shifting provision, as follows:
Payment of Expenses. Instead of or in addition to
the orders above, 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.
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Fed. R. Civ. P. 37(b)(2)(C).4 In this case, plaintiffs' failure to appear for
deposition as required by the court was not substantially justified, nor are
there any circumstances that would make an award of expenses unjust.
Both defendants' counsel and the court attempted to convince plaintiff
Tomo Shibata to appear for deposition, as required by the court, and
warned of the consequences that would befall plaintiffs in the event of her
failure to appear as ordered. See, e.g., Dkt. No. 50. Accordingly, I find that
an award of costs and attorney's fees is justified.
Plaintiffs argue that the award of expenses should be limited to
those services associated with efforts to require plaintiff to appear for
deposition. Dkt. No. 78. I agree, particularly since the court has already
issued the most drastic sanction available—dismissal of plaintiffs'
amended complaint—as a consequence of her failure to appear. While
ostensibly the governing rule could be construed to allow for the court to

Rule 37(d) of the Federal Rules of Civil Procedure, which governs in the event
of a party's failure to attend its own deposition, contains the following similar language:
4

Instead of or in addition to [the prescribed] sanctions, 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.
Fed. R. Civ. P. 37(d)(3).
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award defendants the costs of preparing their motion to dismiss based
upon plaintiff Tomo Shibata's failure to appear to deposition, in light of the
dismissal of plaintiffs' amended complaint I believe that such an award
would be unjust. See Shasgus v. Janssen, L.P., No. 08-CV-180A, 2009
WL 2878542, at *4 (W.D.N.Y. Sept. 2, 2009). I will, however, award
defendants attorney's fees to compensate them for the legal fees incurred
in connection with efforts to compel plaintiff Tomo Shibata to appear for
deposition. Hendrix v. Sw. Bell Tele., LP, No. 4:12-CV-685, 2015 WL
1385386, at *5 (E.D. Tex. Mar. 24, 2015); see also Jennings v. Sallie Mae,
Inc., 358 Fed. Appx 719, 721-22 (7th Cir. 2009) (finding no abuse of
discretion in both dismissing an action based upon plaintiff's refusal to
appear for scheduled deposition, pursuant to both rules 37(b) and 41(b),
and awarding $500 for unjustifiable disobeying the court's discovery order,
pursuant to Rule 37(b)(2)(C)).
From defendants' most recent submission, it appears that 3.1 hours
were expended in connection with defendants' efforts to secure the
deposition of plaintiff Tomo Shibata, including 2.9 hours of attorney time
and .20 hours expended by a paralegal working with Attorney Pope. Dkt.
No. 87; see also Dkt. No. 63. The rates at which recovery is sought—$300
per hour for Attorney Pope and $110 per hour for paralegal time—are
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reasonable and consistent with awards in similar cases from this district.
See, e.g., Cartin-Enario v. Tecson, No. 1:15-CV-0710, 2017 WL 1409639,
(N.D.N.Y. Apr. 19, 2017) (accepting a rate of $300 per hour for an
attorney); Legends Are Forever, Inc. v. Nike, Inc., No. 12-CV-1495, 2013
WL 6086461, at *4 (N.D.N.Y. Nov. 18, 2013) (awarding attorney's fees
based on an hourly rate of $350 for a partner); see generally Arbor Hill
Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182,
183-84 (2d Cir. 2008). Accordingly, I will award defendants' $892.00 in
attorney's fees. In addition, I find that defendants are entitled to recover
the $150 appearance fee from the court reporter for the failed deposition
of plaintiff Tomo Shibata. Accordingly, I will award a total of $1,042.00 in
costs and attorney's fees against plaintiffs.
B.

Plaintiffs' Motion for Sanctions

Also pending before the court is an application by plaintiffs for an
award of sanctions against defendants' counsel, Alan Pope, Esq.,
pursuant to Rule 26(g)(3) of the Federal Rules of Civil Procedure. Dkt. No.
77. That subsection provides as follows:
Sanction for Improper Certification. If a certification
violates this rule without substantial justification,
the court, on motion or on its own, must impose an
appropriate sanction on the signer, the party and
whose behalf the signer was acting, or both. The
sanction may include an order to pay the
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reasonable expenses, including attorney's fees,
caused by the violation.
Fed. R. Civ. P. 26(g)(3). That sanction provision relates to Rule 26(g)(1),
which directs that every discovery device, response, or objection be
signed by an attorney of record or, if the party is proceeding pro se, the
party. Fed. R. Civ. Proc. 26(g)(1). The signature required by that provision
must represent a certification that, to the best of the signer's knowledge,
information and belief, formed after reasonable inquiry:
(A) with respect to a disclosure, it is complete and
correct as of the time it is made; and
(B) with respect to a discovery request, response,
or objection, it is:
(i) consistent with these rules and warranted
by existing law or by a nonfrivolous argument
for extending, modifying, or reversing existing
law, or for establishing new law;
(ii) not interposed for any improper purpose,
such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation;
and
(iii) neither unreasonable nor unduly
burdensome or expensive, considering the
needs of the case, prior discovery in the
case, the amount in controversy, and the
importance of the issues at stake in the
action.
Fed. R. Civ. Proc. 26(g)(1).
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In their motion, plaintiffs ask that as a sanction for Attorney Pope's
alleged violation of Rule 26(g)(1), the court in essence annul the award of
attorney's fees imposed against plaintiffs based upon their failure to
appear for deposition as ordered by the court. Dkt. No. 77. Plaintiffs'
motion centers upon their contention that although a notice of deposition
was served on March 12, 2018, scheduling the deposition of plaintiff Tomo
Shibata for March 30, 2018, in accordance with the court's order dated
February 26, 2018, requiring her to appear for deposition, she understood
a subsequent e-mail communication from Attorney Pope, sent on March
23, 2018, as effectively cancelling that deposition. Id. at 2-3.
The history leading up to efforts on the part of both defendants and
the court to secure a deposition of plaintiff Tomo Shibata in this action has
been extensive, and need not be recounted. It is sufficient to say that on
February 26, 2018, the court issued an order directing plaintiff Tomo
Shibata to appear for deposition at a time and location to be agreed upon
between counsel not later than March 31, 2018. Dkt. No. 50 at 9. After
several failed attempts to collaborate with plaintiff Tomo Shibata for the
purpose of establishing a mutually convenient date for the court-ordered
deposition, and in light of the impending deadline, Attorney Pope served a
notice of deposition on March 12, 2018, scheduling the deposition for
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March 30, 2018—one day before the deadline set by the court. Dkt. No.
54-1 at 5. To his credit, Attorney Pope continued to reach out to plaintiff
Tomo Shibata to determine whether she intended to comply with the
court's order and his notice of deposition. Dkt. No. 79; see also Dkt. No.
54-1. As part of that effort, Attorney Pope sent one of a series of e-mails to
plaintiff Tomo Shibata on March 23, 2018, inquiring whether she intended
to appear for the scheduled deposition. Dkt. No. 77-2 at 1. In that e-mail,
inter alia, Attorney Pope stated the following:
You have not committed to come to New York for
your deposition. If for some reason you have
changed your mind and are coming to Binghamton
for your deposition, I need to know immediately in
order to line up a court reporter.
Id. To the extent plaintiff Tomo Shibata contends that by this e-mail
Attorney Pope both cancelled the deposition scheduled pursuant to his
notice and excused her from complying with the court's order—something
which obviously Attorney Pope would not be empowered to do—her
interpretation of the e-mail is unreasonable, and fails to support her claim
that through his actions in seeking attorney's fees based upon her failure
to appear for deposition, Attorney Pope has committed a fraud on the
court. Accordingly, plaintiffs' motion for sanctions pursuant to Rule 26(g)(3)
is denied.
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III.

SUMMARY AND ORDER
Based upon plaintiff Tomo Shibata's failure to appear for deposition,

as required by the court, I find that defendants are entitled to recover
expenses associated with the efforts of their counsel to secure her
deposition, including both reasonable attorney's fees, in the amount of
$892.00, and additional expenses totaling $150.00. Turning to plaintiffs'
cross motion, I find no basis to conclude that Attorney Pope has violated
Rule 26(g) of the Federal Rules of Civil Procedure, and therefore conclude
that plaintiffs are not entitled to the sanctions sought in their motion.
Accordingly, it is hereby
ORDERED, that plaintiff's letter motion (Dkt. No. 89) is denied; and it
is further
ORDERED, that defendants' motion for costs and attorney's fees
(Dkt. No. 63) is GRANTED, and that defendants recover from plaintiffs,
jointly and severally, the amount of $892.00 in attorney's fees, and
$150.00 in costs, for a total amount of $1,042.00, and that the clerk enter
judgment in defendants' favor and against plaintiffs in that amount; and is
further
ORDERED, that plaintiffs' motion for sanctions (Dkt. No. 77) is
DENIED; and it is further
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ORDERED that the clerk of the court serve a copy of this report and
recommendation upon the parties in accordance with this court's local
rules.

Dated:

October 10, 2018
Syracuse, New York

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