Wheat v. Fifth Third Bank

Filing 91

ORDER finding as moot 56 Motion for Leave to File; granting 57 Motion for Reconsideration VACATING 49 Order on Motion for Miscellaneous Relief; denying 58 Motion for Sanctions. Signed by Magistrate Judge Stephanie K. Bowman on 6/17/13. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CURTIS WHEAT,
Plaintiff,

Case No.: 1:11-cv-737
Dlott, J.
Bowman, M.J.

vs.
FIFTH THIRD BANK,
Defendant.

ORDER

This civil action is now before the Court on Plaintiff’s motion for Reconsideration of
the Court’s January 14, 2013 Order (Doc 57) and Defendant’s memorandum contra (Doc.
87). Also before the Court are Plaintiff’s motion for sanctions (Doc. 58) and motion to file
the authenticated audiotape of Mia Healy’s deposition. (Doc. 56). The motions will be
addressed in turn.
On January 14, 2013, the Court granted Defendant’s unopposed motion for
sanctions against the Plaintiff’s attorney based upon her behavior during the deposition of
Michelle “Mia” Healy. (Doc. 49). The Court further ordered Plaintiff’s counsel to pay
Defendant Fifth Third all reasonable attorneys’ fees and costs associated with Ms. Healy’s
deposition on September 11, 2012 and the filing of the motion for sanctions.
Plaintiff now seeks recision of the Court order asserting, inter alia, that she did not
act in bad faith and her behavior during Ms. Healy’s deposition was not so objectionable
as to justify an award of sanctions. Plaintiff further asserts that the Court previously ruled
on several of the issues raised in Defendant’s motion for sanctions; and as a result, Plaintiff
believed that Defendant’s concerns had been satisfied. Plaintiff contends that she believed
it was unnecessary to respond to Defendant’s motion. In addition to the motion for

reconsideration, Plaintiff also seeks sanctions against Defendant’s counsel based upon her
alleged unprofessional behavior during the deposition of Ms. Healy. (See Doc. 57). In an
abundance of caution and in the interests of justice, the undersigned agrees that the
January 2013 should be vacated. Plaintiff’s motion for sanctions, however, is not welltaken.
Reconsideration is warranted if there has been: 1) a clear error of law; 2) an
intervening change in the law; 3) newly discovered evidence; or 4) a showing of manifest
injustice. GenCorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 832, 834 (6th
Cir.1999). Upon close inspection of the current record before the Court, the undersigned
finds that the award of sanctions against Plaintiff's counsel would result in a "manifest
injustice." Notably, the Court granted Defendant’s motion for sanctions, in large part, due
to Plaintiff’s failure to respond to the motion. Thus, as a result of Plaintiff’s failure to file any
responsive memoranda, the undersigned rendered a decision based upon an incomplete
record and did not fully consider whether less drastic sanctions (other than those requested
by Defendant) would be warranted under the circumstances. Accordingly, Plaintiff’s motion
for reconsideration (Doc. 57) is GRANTED and the Court’s January 14, 2013 (Doc. 49) is
herein VACATED.
Thus, upon further review of Defendant's motion for sanctions (Doc. 21) Plaintiff's
motion for sanctions (Doc. 58) and the parties' responsive memoranda (Doc. 87, 88, 89)
the undersigned declines to sanction either party.1 Thus, the motions for sanctions (Docs.

1

The Court does not condone the actions of counsel during the deposition in question. However,
the status of this case, coupled with the fact that the Court addressed the concerns of counsel by
conducting Ms. Healy’s deposition in the Courtroom, negate the imposition of sanctions.

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21, 58) are herein DENIED. In light of this determination, Plaintiff’s motion to file the
authenticated audiotape of Ms. Healy’s deposition (Doc. 56) is unwarranted and therefore
is DENIED as MOOT.
IT IS SO ORDERED.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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