EPMG of Ohio, Inc., P.A. v. Southwest Healthcare Services, LLC et al

Filing 25

ORDER that defendants produce the documents requested by EPMG in their deposition notices and to identify FRCP 30(b)(6) witnesses who shall appear for depositions on or before 10/17/2013. REPORT AND RECOMMENDATION that EPMG's 23 REQUEST for Sanctions in the amount of $2,818.90 be Granted. ( Objections to R&R due by 10/7/2013). Signed by Magistrate Judge Karen L. Litkovitz on 9/19/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

EPMG OF OHIO, INC. P.A.,
Plaintiff,
vs.
SOUTHWEST HEALTHCARE
SERVICES, LLC, eta/.,
Defendants.

Case No. 1: 11-cv-842
Bertelsman, J.
Litkovitz, M.J.
ORDER AND
REPORT AND
RECOMMENDATION

Plaintiff, EPMG of Ohio (EPMG), brings this diversity action pursuant to 28 U.S.C. §
1332 against defendants Southwest Healthcare Services, LLC and Southwest Healthcare of
Brown County, Ohio, LLC, raising various state law contract and tort claims. (Doc. 1). Default
judgment was granted in favor ofEPMG in April of2012. (Doc. 13). Defendants moved to
vacate the default judgment, but following a hearing held June 14, 2012, the District Judge
denied defendants' motion. (Doc. 20). EPMG subsequently filed notices of depositions for Fed.
R. Civ. P. 30(b)(6) witnesses for each defendant entity which included requests for production of
documents under Fed. R. Civ. P. 34. See Docs. 21, 22. This matter is before the Court on
EPMG's motion for sanctions and to compel defendants' compliance with these discovery
requests. (Doc. 23). To date, defendants have not responded to EPMG's motion.
Following the Court's entry of default judgment in favor ofEPMG, the parties executed a
settlement agreement whereby defendants were required to make monthly payments to EPMG.
(Doc. 23 at 2). Defendants failed to timely make the three final payments. !d. at 3. EPMG
therefore filed deposition notices in May 2013 requiring defendants to produce witnesses and
documents pursuant to Fed. R. Civ. P. 30(b)(6) and 34 for depositions scheduled on July 9, 2013.
(Doc. 23 at 2). The day before the noticed depositions, counsel for defendants informed counsel

for plaintiff that defendants did not intend to produce any witnesses or documents. (Doc. 23 at
3). Indeed, on July 9, 2013, defendants failed to appear at the depositions. (Doc. 23, Ex. 3,
Affidavit of Robert G. Palmer, EPMG's counsel). Defendants have provided no explanation for
their failure to appear at the properly noticed depositions.
Fed. R. Civ. P. 37 provides that "[a] party seeking discovery may move for an order
co pelling an answer, designation, production or inspection" if a party fails to provide discovery
onses. Fed. R. Civ. P. 37(a)(3). Motions to compel are proper where a corporate entity fails
to d signate witnesses as required under Fed. R. Civ. P. 30(b)(6) and when a party fails to permit
ins ection of documents requested pursuant to Fed. R. Civ. P. 34. Fed. R. Civ. P. 37(a)(ii), (iv).
If a motion to compel discovery is granted "or if the disclosure or requested discovery is
provided after the motion was filed - the court must ... require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the
movant's reasonable expenses, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A).
EPMG seeks an order compelling defendants to produce the requested documents and
witnesses for deposition. EPMG also seeks an award of monetary sanctions for the expenses and
attorneys' fees incurred due to defendants' failure to appear at the noticed depositions.
Specifically, EPMG seeks $108.90 in costs which represents the amount charged to counsel for
EPMG by the court reporter service hired to attend the July 9, 2013 depositions and attorneys'
fees in the amount of$2,710.00 for a total sanctions amount of$2,818.90. (Doc. 23 at 4). In
support of its request for costs, EPMG has provided the court reporter service's invoice in the
amount of$108.90. See Doc. 23, Ex. 3 at 3. EPMG supports its request for $2,710.00 in
attorneys' fees with the affidavit of its attorney, Robert G. Palmer, who states that the "fees
reflect 3.8 hours of work by Robert G. Palmer at $425.00 per hour and 7.3 hours by his associate,

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Emily Jackson, at $150.00 per hour." (Doc. 23, Ex. 3 at 2).
As defendants have failed to respond to EPMG's motion or provide any rationale for their
failure to participate in the discovery process, EPMG's motion to compel is well-taken.
Defendants are ORDERED to produce the documents requested by EPMG in their deposition
notices, see Doc. 23, Ex. 1 and 2, and to identify Fed. R. Civ. P. 30(b)(6) witnesses who shall
appear for depositions on or before October 17, 2013.
EPMG's request for sanctions is also well-taken. The Sixth Circuit directs courts to
consider four factors in determining whether an award of sanctions is appropriate: (1) whether
the party's failure to cooperate in discovery is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the party's failure to cooperate in discovery; (3) whether the
party was warned that failure to cooperate could lead to the sanction; and (4) whether less drastic
sanctions were first imposed or considered. Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir.
1997). Here, all factors weigh in favor of awarding sanctions. First, as evidenced by the email
communications attached to EPMG's motion, it is clear that defendants' failure to appear at the
depositions was willful. See Doc. 23, Ex. 3 at 1 (one day before the depositions were set to
proceed, defendants informed their attorney that they would not be producing any witness for the
deposition despite counsel's advice to them that EPMG would likely seek sanctions for their
failure to appear). Second, EPMG has been prejudiced by defendants' failure to participate in
discovery as it has been required to expend money by filing the instant motion to obtain
defendants' compliance with the Federal Rules of Civil Procedure. Third, defendants in this
matter are well aware of the consequences for failing to participate in this litigation as such
failure was the basis for the entry of default judgment against them. Lastly, the Court finds that
awarding attorney's fees and expenses to EPMG for the expenses associated with the aborted

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depositions is the least drastic sanction available to ensure defendants' future compliance with
their duties to participate in discovery. Accordingly, the Court RECOMMENDS that EPMG's
request for sanctions in the amount of $2,818.90 be GRANTED.

Date:

~~

tJ4tJ,/J 3

Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1: 11-cv-842

EPMG OF OHIO, INC. P.A.,
Plaintiff,

Bertelsman, J.
Litkovitz, M.J.

vs.
SOUTHWEST HEALTHCARE
SERVICES, LLC, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report and
Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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