Dudley v. City of Kinston et al

Filing 267

ORDER - The court ADOPTS the findings and conclusions in the order of December 15, 2020 [D.E. 172], OVERRULES the objections [D.E. 180, 181], and AFFIRMS the order [D.E. 172]. The court expects compliance with the conclusion of Judge Numbers's order. This court trusts that there will not be more litigation about "the appropriate amounts of fees and expenses." Signed by District Judge James C. Dever III on 4/30/2021. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTII CAROLINA
EASTERN DMSION
No. 4:18-CV-72-D

HOWARD DUDLEY,
Plaintiff,

v.

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CITY OF KINSTON and
A.N. GREENE,
Defendants.

ORDER

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On December 15, 2020, United States Magistrate Judge Robert T. Numbers, II entered a

thorough order explaining why the court was imposing an award of"reasonable expenses incurred"
against plaintiffHoward Dudley's ("Dudley'') counsel and witness Amy Moore's counsel. See [D.E.
172]; Fed. R. Civ. P. 37(a)(5)(A}-{B). The order discussed how counsel for Amy Moore ''repeatedly
and egregiously violated the rules that apply to depositions" during the deposition of Amy Moore
and improperly terminated the deposition ofAmy Moore. [D.E. 172] 2-4. The order also explained
why the court granted defendants' motion to compel and denied Amy Moore's motion for a
protective order concerning the deposition. See id. at 1-4. The order also explained why Howard
Dudley's counsel failed to demonstrate that Dudley's motion for a protective order concerning Amy
Moore's deposition was "substantially justified or other circumstances make an award of expenses
unjust." Fed. R. Civ. P. 37(a)(5)(B); see [D.E. 172] 4-5.
On December 29, 2020, Dudley's counsel appealed and objected to the order. See [D.E.

180]. On January 4, 2021, Amy Moore's counsel appealed and objected to the order. See [D.E.
181]. Defendants timely responded in opposition. See [D.E. 185, 190].

The court has reviewed the briefs, the deposition of Amy Moore, the deposition notice,
correspondence about the deposition, the hearing transcript, and Judge Numbers's order. See [D.E.
115-4, 172, 180-1, 180-2, 185-1]. AB for the appeal by counsel for Amy Moore, the court rejects
counsel's contention that defendants' counsel failed to confer in good faith with Amy Moore's
counsel before moving to compel. The deposition transcript reflects the good faith efforts of defense
counsel to confer during the deposition and the outrageous response and behavior of Amy Moore's
counsel during the deposition. Defense counsel's good faith efforts during the deposition satisfied
Rule 37. See Yeager v. Fort Knox Sec. Prods., No. 2:11-cv-00091, 2013 WL 1786347, at •2 (D.
Utah Apr. 25, 2013) (unpublished); Fed. R. Civ. P. 37(a)(5)(A)(i). The court also rejects counsel's
contention that an award of reasonable expenses would be unjust because "counsel is an unpaid
advocate for a mentally retarded, non-party'' or that counsel ''was attempting not to obstruct the
deposition." [D.E. 181] 4. AB Judge Numbers found, if counsel's "conduct did not justify an award
of expenses, there are few, if any, cases in which an award would be appropriate." [D.E. 172] 4.
Just so. There is absolutely nothing in the record that ''make[s] an award of expenses unjust." Fed.
R. Civ. P. 37(a)(5)(A)(iii). Thus, the court overrules the objections of Amy Moore's counsel.
AB for the appeal by Howard Dudley's counsel, they defend the motion for a protective order
by arguing that there was a stipulation that the deposition of Amy Moore would be taken by video
conference and that defense counsel would not be present in the room with Amy Moore during the
deposition. See [D.E. 180] 1-3. Judge Numbers properly rejected the latter argument on December
1, 2020, and on December 15, 2020. See [D.E. 164] 8; [D.E. 172] 4-5. Nothing in the deposition
notice or the parties' correspondence amounted to a stipulation that defense counsel would not be
present in the room with Amy Moore during the deposition. Accordingly, Judge Numbers properly
found that Dudley's motion for a protective order was not "substantially justified" and that "other
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circumstances"wouldnot ''make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(B). Thus,
the court overrules the objections of Dudley's counsel.

In sum, the court ADOPTS the findings and conclusions in the order ofDecember 15, 2020
[D.E. 172], OVERRULES the objections [D.E. 180, 181], and AFFIRMS the order [D.E. 172]. The

court expects compliance with the conclusion of Judge Numbers's order. See id. at 5-6. This court
trusts that there will not be more litigation about ''the appropriate amounts

of fees and expenses."

Id. at 6.

SO ORDERED. This ..3Q day of April 2021.

United States District Judge

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