Yoder, et al v. Town of Morristown, et al

Filing 105

MOTION to Amend/Correct 13 Answer to Complaint to clarify and supplement an affirmative defense Motion Hearing set for 4/3/2012 11:00 AM in Albany before Senior Judge Neal P. McCurn Response to Motion due by 3/19/2012 filed by Mark Blanchard, Christopher Coffin, Lanetta Kay Davis, Frank L. Putman, David Stout, III, Town of Morristown, Gary Turner, Howard Warren. (Attachments: # 1 Declaration Laws Declaration, # 2 Exhibit(s) A, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D, # 6 Memorandum of Law, # 7 Appendix unreported case, # 8 Appendix unreported case, # 9 Appendix unreported case, # 10 Appendix unreported case, # 11 Appendix unreported case, # 12 Appendix unreported case, # 13 Appendix unreported case, # 14 Appendix unreported case, # 15 Affidavit certificate of service) Motions referred to Therese Wiley Dancks. (Laws, April)

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Cited
As of: Feb 17, 2012
KARIMONA INVESTMENTS, LLC, Plaintiff, -against- DAVID WEINREB,
Defendant.
02 Civ. 1792 (WHP)(THK)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
2003 U.S. Dist. LEXIS 3559

February 11, 2003, Decided
March 11, 2003, Filed
DISPOSITION:
[*1] Plaintiff entitled to reasonable
costs and expenses as sanction.
CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiff sued defendant
for breach of contract and fraud. Plaintiff sought
sanctions against defendant for his conduct at his
deposition pursuant to Fed. R. Civ. P. 30.
OVERVIEW: Plaintiff's counsel inquired in advance to
defendant's deposition, whether defendant intended to
invoke his Fifth Amendment rights. Defendant did not
respond. At the deposition, plaintiff's counsel was
informed that defendant's attorney intended to seek a stay
of the deposition. Therefore, at the deposition, on the
advice of counsel, defendant refused to provide responses
to virtually all of the substantive questions posed to him.
His refusal was not premised on the actual invocation of
any privilege, but rather on the grounds that responses
might jeopardize defendant's ability to protect his Fifth
Amendment rights. The court found that the deposition

was a complete waste of time and money and plaintiff
was entitled to reimbursement for the attorneys' fees and
costs reasonably incurred in attending the deposition.
However, fees for the motion to compel defendant's
deposition testimony would not be awarded. Although
the court denied defendant's motion for a stay of his
deposition, that motion was not frivolous, and thus the
costs of seeking further deposition testimony would not
be awarded.
OUTCOME: Plaintiff was entitled to the reasonable
costs and expenses incurred in relation to defendant's
conduct as his deposition.
LexisNexis(R) Headnotes

Civil Procedure > Discovery > Methods > Oral
Depositions
Civil Procedure > Discovery > Misconduct
Legal Ethics > Client Relations > Attorney Fees >

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2003 U.S. Dist. LEXIS 3559, *1

General Overview
[HN1] Sanctions, including costs and attorney's fees, may
be awarded under Fed. R. Civ. P. Rule 30 for conduct that
the court determines has frustrated the fair examination of
the deponent. In all proceedings, including those
governed by the Federal Rules of Civil Procedure
governing discovery, there is a duty imposed upon
counsel to deal fairly and sincerely with the court and
opposing counsel so as to conserve the time and expense
of all, and that action may be litigated in an orderly
manner.
COUNSEL: For Karimona Investments, LLC,
PLAINTIFF: Lee Gordon Dunst, Gibson, Dunn &
Crutcher, LLP, New York, NY USA.
For David Weinreb, DEFENDANT: George Bochetto,
Bochetto & Lentz, PC, Philadelphia, PA USA.
For David Weinreb, COUNTER-CLAIMANT: George
Bochetto, Bochetto & Lentz, PC, Philadelphia, PA USA.
For
Karimona
Investments,
LLC,
COUNTER-DEFENDANT: Lee Gordon Dunst, Gibson,
Dunn & Crutcher, LLP, New York, NY USA.
JUDGES: THEODORE H. KATZ, UNITED STATES
MAGISTRATE JUDGE.
OPINION BY: THEODORE H. KATZ
OPINION
MEMORANDUM OPINION AND ORDER
Theodore H. Katz, United States Magistrate
Judge
This action, for breach of contract and fraud, was
referred to this Court for general pretrial supervision. At a
conference held on February 13, 2003, the Court
determined that Defendant, David Weinreb, should be
sanctioned for his conduct at his deposition, held on
February 8. The basis for the Court's determination is
briefly summarized here.
Plaintiff's counsel was put to unnecessary expense in
traveling to, preparing for, and conducting the deposition.
He specifically inquired in advance of the [*2]
deposition whether Weinreb intended to invoke his Fifth
Amendment rights, but received no response from

Weinreb's attorney. It was only at the deposition that he
was informed that Weinreb's attorney intended to seek a
stay of the deposition. Therefore, at the deposition, on the
advice of counsel, Weinreb refused to provide responses
to virtually all of the substantive questions posed to him.
His refusal was not premised on the actual invocation of
any privilege, but rather on the grounds that responses
"might jeopardize Weinreb's ability to protect his Fifth
Amendment rights." Deposition of David Weinreb, Feb.
8, 2003, at 19. Weinreb thus tried to have it both ways, by
refusing to respond to questions, while evading the
consequences of a refusal in which he actually invoked
his Fifth Amendment rights. 1
1 In a separate Opinion and Order, the Court has
denied Weinreb's motion for a stay of his
deposition (made subsequent to the February 8
deposition), which was premised on his claim that
he may be the subject of a criminal investigation.
See Memorandum Opinion and Order, March 6,
2003.
[*3] The deposition was a complete waste of time
and money. Accordingly, the Court has determined that
Plaintiff is entitled to reimbursement for the attorneys'
fees and costs reasonably incurred in attending the
deposition. See Morales v. Zondo, Inc., 204 F.R.D. 50, 53
(S.D.N.Y. 2001)([HN1] "Sanctions, including costs and
attorney's fees, may be awarded under Rule 30 for
conduct that the Court determines has frustrated the fair
examination of the deponent.")(internal quotation marks
omitted); Learning Int'l, Inc. v. Competence Assurance
Systems Inc., 1990 U.S. Dist. LEXIS 16810, No. 90 Civ.
2032(MBM), 1990 WL 204163, at *3 (S.D.N.Y. Dec. 13,
1990) ("In all proceedings, including those governed by
the Federal Rules of Civil Procedure governing
discovery, there is a duty imposed upon counsel to deal
fairly and sincerely with the court and opposing counsel
so as to conserve the time and expense of all, and that
action may be litigated in an orderly manner.") (citation
omitted).
Plaintiff's counsel, Seth Miller ("Miller"), is an
associate with the firm of Gibson, Dunn & Crutcher LLP
("Gibson Dunn"), and he works in Gibson Dunn's Los
Angeles office. He has submitted a declaration setting
forth [*4] the time he spent preparing for, traveling to,
and conducting the deposition, as well as his hourly
billing rate. In addition, he has submitted his
contemporaneous billing records. Miller's hourly billing

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2003 U.S. Dist. LEXIS 3559, *4

rate is $ 435. See Declaration of Seth Miller, Feb. 19,
2003 ("Miller Decl.") P 5. He spent at least nineteen
client billable hours traveling to and from New York,
preparing for, and taking Weinreb's deposition. 2 The
deposition itself consumed three hours. Plaintiff therefore
incurred no less than $ 8,625.00 in attorneys' fees in
connection with the aborted deposition. Id. In addition,
Miller's flight to and from New York cost $ 2005.76, and
he spent two nights at a hotel, costing $ 318.00 in total.
Id. P 6. 3 Finally, he was advised by the reporting service
that the court reporting and videographer's fees for the
deposition will total approximately $ 1500.00. Id. Thus,
in total, Plaintiff incurred attorneys' fees and other costs
in connection with Weinreb's February 8 deposition of at
least $ 12,088.76. Miller also seeks another $ 5,220.00 in
fees in connection with researching and drafting the
motion to compel Weinreb's further deposition testimony.
Id. P [*5] 8.
2 This figure is corroborated in Miller's daily
work sheets.
3 Although Defendant claims that Miller would
have incurred the costs of coming to New York in
any event, because he conducted another
deposition here, Miller asserts that the deposition
was far less significant than Weinreb's and that it
would have been conducted by an associate in
Gibson Dunn's New York office had he known
that Weinreb would refuse to answer any
substantive questions. Id. P 9.

Fees for the motion will not be awarded. Although
the Court has denied Weinreb's motion for a stay of his
deposition, that motion was not frivolous, and thus the
costs of seeking further deposition testimony will not be
awarded. However, as set forth above, the motion was
untimely. Had it been brought before the deposition,
Plaintiff would not have incurred the expense of the
deposition.
Plaintiff is therefore entitled to the reasonable costs
and expenses incurred in relation to the deposition. The
Court has reviewed counsel's time records and [*6]
declaration and concludes that it is reasonable to require
Weinreb to bear two-thirds of Plaintiff's costs and fees.
Although counsel has stated that he would not have
traveled to New York if he had known that Weinreb's
deposition would not proceed, while in New York he did
conduct another deposition. Moreover, although Plaintiff
has the right to retain counsel in California, where it is
located, the Court does not find it reasonable to impose
the full cost of that choice on Defendant. Accordingly,
Weinreb shall reimburse Plaintiff in the amount of $
8,067.00 (two-thirds of $ 12,099.76).
SO ORDERED.
THEODORE H. KATZ
UNITED STATES MAGISTRATE JUDGE
Dated: February 11, 2003