Rauch Industries, Inc. v. David Strand Designs, LLC

Filing 52

MEMORANDUM AND ORDER. For the reasons set forth in this memorandum and order, Rauch's motion for sanctions (Docket no. 49) is denied. Denying 49 Motion for Sanctions. (Signed by Magistrate Judge James C. Francis on 4/25/2011) Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
RAUCH INDUSTRIES, INC.,
:
:
Plaintiff,
:
:
- against :
:
DAVID STRAND DESIGNS, LLC,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
In

this

action,

the

(ECF)

10 Civ. 5476 (LAK) (JCF)
MEMORANDUM
AND ORDER

plaintiff,

Rauch

Industries,

Inc.

(“Rauch”), alleges that the defendant, David Strand Designs, LLC
(“DSD”), infringed its copyrighted designs for Christmas tree
ornaments.

Rauch now moves pursuant to Rule 37(d)(1)(A)(i) of the

Federal Rules of Civil Procedure for sanctions, including judgment
by default and an award of attorneys’ fees, as a consequence of the
failure of
deposition.

DSD’s

principal, David

Strand,

to

appear

for

his

granting

the

The motion is denied.

Background
On

November

17,

2010,

I

issued

an

order

application of DSD’s attorneys to withdraw and giving DSD sixty
days to secure new counsel.

(Order dated Nov. 17, 2010).

Although

DSD did not obtain representation, Mr. Strand agreed to be deposed
in order to provide Rauch with information relevant for settlement
discussions and, ultimately, for trial.
1

(Affidavit of Gregory S.

Tamkin dated March 9, 2011 (“Tamkin Aff.”), ¶¶ 4, 6-8).
deposition was scheduled for March 3, 2011.
Exh. 3).

The

(Tamkin Aff., ¶ 6 &

However, on March 1, 2011, Mr. Strand contacted Rauch’s

counsel, Gregory Tamkin, by e-mail, stating, “Unfortunately, due to
scheduling conflicts the deposition won’t work this week.

Perhaps

it could be rescheduled for the later part of the week of the 14th
when we’ll both be in Manhattan.”

(E-mail from David Strand to

Greg Tamkin dated March 1, 2011, 1:21 p.m., attached as part of
Exh. 5 to Tamkin Aff.).

Mr. Tamkin responded that Mr. Strand did

not have the right to “unilaterally cancel,” and he warned that
failure to appear for the deposition would be grounds for a
default.

(E-mail from Gregory S. Tamkin to David Strand dated

March 1, 2011, 2:26 p.m., attached as part of Exh. 5 to Tamkin
Aff.).

After a flurry of additional e-mails in which Mr. Strand

indicated that he would not appear and Mr. Tamkin reiterated that
he was required to, Mr. Strand concluded by saying, “As I’ve
already explained to you in multiple emails I have a conflict, need
to reschedule and will not be there tomorrow.”

(E-mail from David

Strand to Greg Tamkin dated March 2, 2011, 6:51 p.m., attached as
part of Exh. 5 to Tamkin Aff.).

Mr. Tamkin replied that he

intended to conduct the deposition the next morning in Minneapolis
as scheduled. (E-mail from Greg Tamkin to David Strand dated March
2, 2011, 10:14 p.m., attached as part of Exh. 5 to Tamkin Aff.).
2

Mr. Tamkin, whose office is in Denver, flew to Minneapolis on
March 2 for the deposition.
not

appear

the

next

day.

(Tamkin Aff., ¶ 11).
(Tamkin

Aff.,

¶

Mr. Strand did

11

&

Exh.

6).

Accordingly, Rauch filed the instant motion, seeking entry of a
default judgment and an award of its attorneys’ fees.
Discussion
Rule 37(d)(1)(A)(i) provides that a court may order sanctions
if “a party or a party’s officer, director, or managing agent . . .
fails, after being served with proper notice, to appear for that
person’s deposition.”

“The imposition of sanctions under Rule 37

is within the discretion of the district court.”

Gomez v. Volpe,

No. 9:06-CV-900, 2008 WL 833942, at *2 (N.D.N.Y. March 27, 2008).
No sanctions are warranted in this case because any injury to Rauch
was self-inflicted.

Prior to the time that Mr. Tamkin commenced

traveling to the deposition, he had received unequivocal notice
that Mr. Strand would not be attending. Rather than cooperating in
an effort to reschedule or contacting the court to seek a ruling,
counsel chose to force the issue.

By doing so, he assumed the risk

that Mr. Strand would not appear.

See Multiven, Inc. v. Cisco

Systems, Inc., No. C08-05391, 2010 WL 2557335, at *3 (N.D. Cal.
June 21, 2010) (denying sanctions where movant had notice that
deponent would not appear).

3

Conclusion
For the reasons set forth above, Rauch's motion for sanctions
(Docket no. 49) is denied. 1
SO ORDERED.

~

~'~evA~~

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE

Dated: New York, New York
April 25, 2011
Cop

mailed this date to:

Cecilie Howard, Esq.
Christopher G. Karagheuzoff, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10177
Gregory S. Tamkin, Esq.
Dorsey & Whitney LLP
Republic Plaza Building, Suite 4700
370 17th Street
Denver, CO 80202
David Strand Designs, LLC
Attn: David Strand
2751 Hennepin Avenue South, #7
Minneapolis, MN 55408

In a report and recommendation filed today,
I have
recommended that judgment by default be entered against DSD on
different grounds.
4