Joint Technology Inc v. Weaver et al

Filing 159

ORDER denying 135 plaintiff's Rule 30 Motion for Sanctions (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 2/21/2014. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOINT TECHNOLOGY, INC. d/b/a
REVERT SYSTEMS, an Oklahoma
Corporation,
Plaintiff-Counter Defendant,
v.
GARY KENT WEAVER, JR.,
Defendant-Counter Claimant.
GARY KENT WEAVER, JR.,
Third-Party Plaintiff,
v.
JIM PATTON,
Third-Party Defendant.

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Case No. CIV-11-846-M

ORDER
Before the Court is Plaintiff’s Rule 30 Motion for Sanctions, filed March 12, 2013. On
March 26, 2013, defendant filed his response. Plaintiff filed no reply. Based upon the parties’
submissions, the Court makes its determination.
On July 26, 2011, plaintiff filed the instant action alleging five claims for breach of the
employment agreement and claims for conversion of inventory and expense funds against defendant,
plaintiff’s former vice president. On October 18, 2011, defendant filed an Answer, Counterclaims,
and Third-Party Claims1, and on January 10, 2012, Weaver Medical Group, Inc. filed its Complaint
in Intervention. On January 23, 2013, the Court ruled in favor of defendant on plaintiff’s contractual

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Defendant asserted 7 counterclaims, one of which is for injunctive relief from tax
disclosure (“1099 disclosure claim”).

claims. On January 24, 2013, defendant voluntarily dismissed his claims for unpaid commissions,
and on February 4, 2013, defendant voluntarily dismissed his claims for defamation, unjust
enrichment, conversion, and replevin. The case proceeded on defendant’s 1099 disclosure claim,
seeking injunctive relief from tax disclosure. Subsequently, the Court granted defendant’s motion
for summary judgment on its 1099 disclosure claim
Plaintiff’s counsel Paul E. Quigley (“Mr. Quigley”) filed this motion to sanction largely based
on defendant’s counsel Ms. Jaclynn Loney’s (“Ms. Loney”) alleged conduct regarding the deposition
of non-party witness Mr. James Ayo (“Mr. Ayo”). Mr. Quigley scheduled the depositions of witnesses,
including Mr. Ayo, to take place on January 22, 2013 in Knoxville, Tennessee. To allow Ms. Loney
to depose additional witnesses on January 22, 2013, Mr. Quigley rescheduled Mr. Ayo’s deposition to
take place on January 23, 2013 in Georgia. Mr. Ayo’s deposition commenced as scheduled. During the
deposition, Ms. Loney received notice on her phone that the Court had issued an order granting
summary judgment in favor of defendant on all of plaintiff’s contract claims. In light of the order, Ms.
Loney requested that the parties terminate the deposition as moot. Mr. Quigley disagreed. Ms. Loney
attempted to contact the Court by phone to resolve this issue; Ms. Loney was unable to reach the Court
at that time. While waiting to receive a call back from the Court, Mr. Quigley allegedly stated that he
was going to continue the deposition and that Mr. Ayo must comply because the witness was present
pursuant to a subpoena. Ms. Loney stated to Mr. Quigley, in front of Mr. Ayo, that Mr. Quigley has
failed to obtain a valid subpoena and that this deposition is taken by an agreement. Mr. Quigley then
explained to Mr. Ayo that he was there by an agreement and that he may leave if he chooses too,
although Mr. Quigley would like to continue with the deposition. Mr. Ayo chose to leave.
Federal Rule of Civil Procedure 30(d)(2) & (3) provides:

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(2) Sanction. The court may impose an appropriate sanction–including
the reasonable expenses and attorney's fees incurred by any party–on a
person who impedes, delays, or frustrates the fair examination of the
deponent.
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent or a party
may move to terminate or limit it on the ground that it is being
conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses the deponent or party. The motion may be
filed in the court where the action is pending or the deposition is being
taken. If the objecting deponent or party so demands, the deposition
must be suspended for the time necessary to obtain an order.
Fed. R. Civ. P. 30(d). Mr. Quigley now moves the Court to sanction Ms. Loney for her conduct
during the deposition that resulted in Mr. Ayo leaving the deposition. Having carefully reviewed the
parties’ submissions, the Court finds that no sanction is warranted. Mr. Quigley re-scheduled the
January 22 deposition to accommodate Ms. Loney and allow her to depose certain witnesses on that
same date. At the January 23 deposition, the parties were already present and the deposition had already
commenced. Regardless of the Court’s order issued in the middle of the deposition, the courteous,
prudent, and professional course of action was to allow Mr. Quigley to continue with the deposition.
Notwithstanding, under the circumstances of this case, the Court does not find that Ms. Loney’s
conduct rises to the level of a sanctionable offense.
Accordingly, the Court DENIES plaintiff’s Rule 30 Motion for Sanctions [docket no. 135].
IT IS SO ORDERED this

21st day of February, 2014.

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