Bauman v. 2810026 Canada Limited Ltd. et al
Filing
34
DECISION AND ORDER. Pursuant to Rule 37(a)(5)(A) and Rule 37(d)(3), Defendants' counsel shall pay Plaintiffs' reasonable expenses, including attorneys fees, incurred in connection with Plaintiffs' motion. Plaintiffs shall submit Plain tiffs' attorney's affidavit detailing such expenses, based on contemporaneous time-records and Plaintiffs' attorney's billing rates, within 30 days of this Decision and Order; Defendants' opposition, if any, shall be filed within 15 days thereafter; Plaintiffs' reply, if any, shall be filed within 5 days thereafter. Oral argument shall be at the courts discretion. Signed by Hon. Leslie G. Foschio on 10/4/2016. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
JEFFREY ROTH,
Plaintiff,
v.
13-CV-901A(F)
2810026 CANADA LIMITED LTD.,
2810034 CANADA LIMITED,
FREDERICK GROUP INC.,
SINGH AMARJIT,
Defendants
Third-Party Plaintiffs,
DECISION
and
ORDER
v.
PAMELA J. BAUMAN,
Third-Party Defendant.
_______________________________________
PAMELA BAUMAN,
Plaintiff,
v.
15-CV-374A(F)
2810026 CANADA LIMITED,
2810034 CANADA LIMITED,
FREDERICK GROUP INC.,
SINGH AMARJIT,
Defendants
_____________________________________
APPEARANCES:
DAVID W. POLAK, ESQ.
Attorney for Plaintiffs
3686 Seneca Street
West Seneca, New York 14224
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
Attorneys for Defendants
BEATA SHAPIRO, of Counsel
260 Franklin Street, 14th Floor
Boston, Massachusetts 02110
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FELDMAN KIEFFER, LLP
Attorney for Third-Party Defendant
ADAM C. FERRANDINO, of Counsel
110 Pearl Street, Suite 400
Buffalo, New York 14202
In its Decision and Order filed July 18, 2016 (Dkt. 51, 27, respectively) (“the July 18,
2016 D&O” or “the D&O”), the court granted Plaintiffs’ motion to compel Defendants’
depositions (Dkt. 46) and directed such depositions be conducted within 45 days of the July
18, 2016 D&O. In the D&O, the court rejected Defendants’ opposition to Plaintiffs’ motion as it
was based on Defendants’ belief that under New York law, specifically N.Y.C.P.L.R. § 3106(a),
Defendants, by noticing Plaintiffs’ deposition before Plaintiff had noticed Defendants, had a
priority of depositions and that because Plaintiffs had not fully complied with Defendants’
previously served document requests, Defendants were unable to timely complete Plaintiffs’
depositions. However, as the court pointed out, upon removal of this action, the Federal Rules
of Civil Procedure displaced state law, July 18, 2016 D&O at 3 (quoting Fed.R.Civ.P. 81(c)(1)),
and under Fed.R.Civ.P. 26(d)(3)(A), that absent a stipulation or court order to the contrary, “the
method of discovery may be used in any sequence” by a party. Id. As no such stipulation or
order was cited by Defendants in opposition to Plaintiffs’ motion, the court found itself required
to grant Plaintiffs’ motion and directed Defendants to show cause why Plaintiffs’ expenses,
including reasonable attorneys fees, pursuant to Fed.R.Civ.P. 37(a)(5)(A) (“Rule 37(a)(5)(A)”),
should not be imposed. July 18, 2016 D&O at 4 (“Order to Show Cause”). In accordance with
the D&O’s direction, Defendants, on July 28, 2016, filed the Affirmation of Beata Shapiro, in
opposition to the order to show cause (Dkt. 29) (“Shapiro Affirmation”) (“Defendants’
Response”) contending that sanctions are not warranted because (1) Defendants, in refusing
to comply with Plaintiffs’ deposition notice, had acted in “good faith,” and (2) that Plaintiffs had
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not timely complied with Defendants’ discovery requests thereby interfering with Defendants’
ability to take Plaintiffs’ deposition. Shapiro Affirmation ¶¶ 3-4. Defendants further contend
that despite Plaintiffs’ failure to provide full discovery, Defendant conducted Plaintiffs’
deposition on June 16, 2016 and that Plaintiff acknowledged that production of Plaintiffs’
medical and disability records were incomplete. Shapiro Affirmation ¶ 6. Plaintiffs have not
responded to Defendants’ Responses.
An award of expenses, including reasonable attorneys fees incurred by a party in
connection with a successful motion to compel a party’s deposition is required as a sanction
under Rule 37(a)(5)(A) and Fed.R.Civ.P. 30(d)(3) (“Rule 30(d)(3)”) unless failure of the
responding party to provide discovery, including a refusal to schedule an oral deposition
pursuant to Fed.R.Civ.P. 30(a)(1), see Fed.R.Civ.P. 37(a)(3), was substantially justified or,
under the circumstances, an award would be unjust. “A party’s failure to provide discovery is
substantially justified if a genuine dispute exists of if there is an objectively reasonable basis
for the failure.” Rosehoff, Ltd v. Truscott Terrace Holdings LLC, 2016 WL 2640351, at *4
(W.D.N.Y. May 10, 2016) (citing Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C.Cir. 2015) (citing
caselaw)), “such as where a party believed caselaw supported its position,” Scott-Iverson v.
Independent Health Association, Inc., 2016 WL 1458239, at *2 (W.D.N.Y. Apr. 14, 2016) (citing
Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citing Maddow v. Proctor & Gamble Co. Inc.,
107 F.3d 846, 853 (11th Cir. 1997))). As the test for substantial justification is “determined by
an ‘objective standard of reasonableness and does not require that the party have acted in
good faith,’” Underdog Trucking, L.L.C. v. Verizon Services Corp., 273 F.R.D. 372, 377
(S.D.N.Y. 2011) (quoting Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 262
(S.D.N.Y. 1995) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1998))), that a party refused
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to participate in scheduling an oral deposition believed it was acting in good faith is irrelevant.
See Scott-Iverson, 2016 WL 1458239, at *3 (citing Underdog Trucking, L.L.C., 273 F.R.D. at
377). See also Baicker-McKee, Janssen, Corr, FEDERAL CIVIL RULES HANDBOOK (2016
Thompson Reuters) at 970 (“Good faith generally does not equate to substantial justification;
the losing party [on the motion to compel] must demonstrate some unsettled issue of law or
like circumstance.” (citing Pierce, 487 at 565; Parsi, 778 F.3d at 126-27) (underlining and
bracketed material added)). “An award of attorneys fees may be unjust where the party’s
failure was based on factors beyond the party’s control.” Scott-Iverson, 2016 WL 1458239, at
*3.
Here, Defendants point neither to unsettled caselaw supporting Defendants’ failure to
respond to Plaintiffs’ deposition notices nor to any circumstances showing Defendants’ refusal
was based on factors beyond Defendants’ control. Indeed, Defendants’ Response fails to
acknowledge under Rule 81(c)(1) that, contrary to Defendants’ continued erroneous belief,
after removal the federal, not state, rules of procedure apply, July 18, 2016 D&O at 3, and that
under Rule 26(d)(3)(A) Defendants were not entitled to a priority with respect to the scheduling
and conduct of Plaintiffs’ depositions prior to conducting Defendants’ depositions which was
the subject of Plaintiffs’ successful motion to compel. Nor do Defendants point to any
circumstances beyond Defendants’ control that would, on this record, render an award of
attorneys fees unjust. Defendants’ argument that Plaintiffs’ failure to provide complete
document discovery relating to Plaintiffs’ damages had thwarted Defendants’ ability to
effectively conduct Plaintiffs’ depositions also fails as it merely reiterates Defendants’
opposition to Plaintiffs’ motion, an argument rejected by the D&O, see July 18, 2016 D&O at 3
(explaining that court failed to see how Plaintiffs’ incomplete production could conceivably
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effective deposition of Plaintiffs and that Defendants could have, but did not, move to compel
prior to Plaintiffs’ motion) and Defendants did not appeal the July 18, 2016 D&O. Accordingly,
the court is constrained to find Defendants’ refusal, under the circumstances presented, to
schedule Defendants’ depositions was not substantially justified and that an award of Plaintiffs’
reasonable attorneys fees would not be unjust.
Further, pursuant to Rule 37(a)(5)(A), as Defendants fail to address whether
responsibility for Defendants’ failure to comply with Plaintiffs’ deposition notices should be
apportioned between Defendants, as parties, or Defendants’ counsel, the court finds that only
Defendants’ counsel shall be required to pay the award of Plaintiffs’ expenses.
CONCLUSION
Based on the foregoing, pursuant to Rule 37(a)(5)(A) and Rule 37(d)(3), Defendants’
counsel shall pay Plaintiffs’ reasonable expenses, including attorneys fees, incurred in
connection with Plaintiffs’ motion. Plaintiffs shall submit Plaintiffs’ attorney’s affidavit detailing
such expenses, based on contemporaneous time-records and Plaintiffs’ attorney’s billing rates,
within 30 days of this Decision and Order; Defendants’ opposition, if any, shall be filed within
15 days thereafter; Plaintiffs’ reply, if any, shall be filed within 5 days thereafter. Oral argument
shall be at the court’s discretion.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: October 4, 2016
Buffalo, New York
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