Monds v. Watkins Trucking Company, Inc. et al
Filing
42
ORDER re 33 Motion for Sanctions. Therefore, Defendant Carl Nelson is hereby ORDERED to present himself for a deposition in Nashville, Tennessee, within thirty (30) days of entry of the instant Order. If he fails to do so, the undersigned will r ecommend that a default judgment be entered against him. In all other respects, the instant Motion, including the request for attorneys' fees and expenses (Docket No. 33) is DENIED. IT IS SO ORDERED. Signed by Magistrate Judge E. Clifton Knowles on 3/28/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KIMBERLY MONDS,
)
)
Plaintiff,
)
)
)
) CASE NO. 3:12-1147
vs.
) JUDGE TRAUGER/KNOWLES
)
) JURY DEMAND
)
WATKINS TRUCKING CO., INC. and )
CARL EDWARD NELSON,
)
)
Defendants.
)
ORDER
This matter is before the Court upon “Plaintiff’s Motion for Sanctions for Failure of Carl
Nelson to Attend His Deposition.” Docket No. 33. Plaintiff has also filed the Declaration of one
of her counsel and a Memorandum of Law. Docket Nos. 33-3, 33-10. Defendants have filed a
Response in Opposition to the Motion (Docket No. 35), a supplemental Response to the Motion
(Docket No. 41), and the Affidavit of one of their counsel (Docket No. 41-1). Judge Trauger has
referred the Motion to the undersigned for disposition. Docket No. 44.
This diversity case involves a motor vehicle accident that occurred on August 14, 2012,
on Interstate 65 in Williamson County, Tennessee. Docket No. 1. Plaintiff avers that she was
driving southbound on I-65 and that Defendant Carl Nelson was driving a tractor-trailer owned
and operated by Defendant Watkins Trucking Company. Plaintiff avers that Defendant Nelson
struck the rear of her vehicle at a high rate of speed. Plaintiff further avers that Defendant
Nelson violently and recklessly rammed Plaintiff’s vehicle in an attempt to flee the scene of the
wreck. When he was stopped by the Tennessee Highway Patrol, Schedule II Drugs and
Schedule III Drugs, including Methamphetamine or “crystal meth” were found inside the cab of
the truck. Plaintiff further alleges that Defendant Nelson was using a cell phone, texting, or
otherwise distracted.
Plaintiff filed her Complaint on November 6, 2012. Docket No. 1. Judge Trauger
subsequently entered an Order setting the case for trial on June 10, 2014. Docket No. 10. Judge
Trauger also entered an Initial Case Management Order, setting a discovery cut-off deadline of
September 30, 2013, and a dispositive Motion deadline of January 15, 2014. Docket No. 12.
Thereafter, the parties filed an “Agreed Motion to Extend Discovery Deadlines,”
requesting a 60-day extension to complete fact and expert discovery. Docket No. 20. Judge
Trauger granted that Motion. Docket No. 21.
On November 15, 2013, the parties filed a “Joint (Second) Motion to Amend Scheduling
Order.” Docket No. 26. Among other things, that Motion sought an extension of the fact
discovery deadline to December 30, 2013, and the dispositive motion deadline to April 7, 2014.
Id., p. 1. The Motion further stated, “As grounds for this motion, the Parties show Defendants
were not available for deposition until November 25th, 2013, which now has been scheduled.”
Id. Docket No. 26. Judge Trauger granted that Motion in part, extending the fact discovery
deadline to December 30, 2013. Docket No. 30. Judge Trauger’s Order also provided, “In light
of the agreement of the parties that no dispositive motions will be filed, the trial date shall
remain in place.”
According to the instant Motion, Plaintiff’s counsel made numerous attempts to set
Defendant Nelson’s deposition. He initially filed deposition notices for both Defendant Nelson
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and a corporate representative of Defendant Watkins to be taken on November 25, 2013, in
Nashville. See Docket Nos. 27, 28. Defendants’ counsel sought to move the date of the
depositions to December 5, 12, or 13. Additionally, Defendants’ counsel “insisted” that the
depositions take place in Birmingham. Plaintiff’s counsel agreed and reset the depositions for
December 12 in Birmingham.
On December 10, 2013, Defendant’s counsel advised Plaintiff’s counsel that Mr. Nelson
would be out of town and would not be in attendance at his deposition. Plaintiff’s counsel
responded that he intended to proceed with Mr. Nelson’s deposition at the scheduled time. The
Motion states that Plaintiff’s counsel appeared on December 12 in Birmingham for the
deposition, but that Mr. Nelson did not.
Defendants’ counsel later advised Plaintiff’s counsel that Mr. Nelson would be produced
in Nashville during the last week of December for his deposition. Mr. Nelson, however, did not
appear, and discovery closed on December 30, 2013. On January 3, 2014, Plaintiff filed the
instant Motion.
It should be noted that the instant Motion is a Motion only for sanctions; it is not a
Motion to Compel. Plaintiff seeks sanctions against Defendants pursuant to Fed. R. Civ. P.
37(d)(1)(A)(I). Plaintiff seeks to strike portions of Defendants’ Answer and defenses. Plaintiff
also seeks attorneys’ fees and expenses in the total amount of $5,006.56 ($4,675.00) in
attorneys’ fees and $331.56 in expenses). The attorneys’ fees represent 5 hours “in preparation
and review of discovery materials,” 6 hours in travel time to and from Birmingham, and 1 hour
in travel time to the deposition from a hotel in Birmingham. Docket No. 33-3, p. 3. Counsel
also seeks 5 hours of attorneys’ fees for “drafting and filing this present Motion with
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attachments.” Docket No. 33-3, p. 4. Counsel states that his customary hourly rate is $275 per
hour, which for 17 hours equals $4,675.00. Counsel also seeks a total of $331.56 in expenses,
representing a hotel charge of $111.21, plus $220.35 in mileage expenses (56.5 cents for 390
miles).
Defendants argue in their Response that the sanctions sought by Plaintiffs are harsh and
unwarranted, even though Defendants admit that Mr. Nelson did not appear for his deposition.
Docket No. 35. According to Defendants, Plaintiff’s counsel did not begin to seek dates for the
two depositions referred to above until early November 2013. Defendants argue that Mr.
Nelson’s deposition was scheduled based upon prior conversations with him. On December 10,
2013, however, Mr. Nelson contacted counsel for Defendants, advised that he was out of state
working,1 and would be unable to attend a deposition on December 12. Defendants’ counsel
immediately contacted Plaintiff’s counsel and advised him of the situation. Id., p. 4.
There was, however, no problem with the company representative for Watkins giving her
deposition on December 12 in Birmingham, and she did so. Id., p.4-5.
Thereafter, Defendants’ counsel made continuing attempts to contact Mr. Nelson to have
him come to Nashville to be deposed. Those efforts, however, proved unsuccessful. Defendants
further state:
A private investigator has been secured to locate Mr. Nelson.
Once Mr. Nelson is located, counsel for the defendants will
immediately arrange for him to Franklin, Tennessee, so that
plaintiff’s counsel can complete the requested deposition. Every
1
Neither party discusses whether Mr. Nelson is still a truck driver. Additionally, neither
party discusses whether Mr. Nelson is still employed by Defendant Watkins, although the Court
presumes that he is not.
4
effort is being extended to have Mr. Nelson appear.
Id., p. 5.
Plaintiff seeks sanctions pursuant to Fed. R. Civ. P. 37(d), which provides in relevant
part:
(d) Party’s Failure To Attend Its Own Deposition, Serve Answers
to Interrogatories, or Respond to a Request for Inspection.
(1) In General.
(A) Motion; Grounds for Sanctions. The court
where the action is pending may, on motion, order
sanctions if:
(i) a party . . . fails after being served
with proper notice, to appear for that
person’s deposition . . . .
...
(3) Types of Sanctions. Sanctions may include any of the orders
listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these
sanctions, the court must require the party failing to act, the
attorney advising that party, or both to pay the reasonable
expenses, including attorney’s fees, caused by the failure, unless
the failure was substantially justified or other circumstances make
an award of expenses unjust.
Rule 37(b)(2)(A) provides in relevant part:
(2) Sanctions Sought in the District Where that Action Is Pending.
(A) For Not Obeying Any Discovery Order. If a
party . . . fails to obey an order to provide or permit
discovery . . . the court where the action is pending
may issue further just orders. They may include the
following:
(i) directing that the matters embraced in the order
or other designated facts be taken as established for
purposes of the action, as the prevailing party
claims;
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(ii) prohibiting the disobedient party from
supporting or opposing designated claims or
defenses, or from introducing designated matters in
evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is
obeyed;
(v) dismissing the action or proceeding in whole or
in part;
(vi) rendering a default judgment against the
disobedient party . . . .
The Sixth Circuit discussed the propriety of a district court’s imposing sanctions under
Rule 37 in Beil v. Lakewood Engineering and Manufacturing Co., 15 F.3d 546 (6th Cir. 1994).
The Beil Court in part:
A district court’s decision to invoke Rule 37 sanctions is reviewed
by this court for an abuse of discretion. . .
In deciding whether the district court acted unreasonably,
arbitrarily or fancifully, this court has announced several factors
that it should consider when deciding whether the district court
abused its discretion by imposing sanctions. Among the factors
are: (1) whether the adversary was prejudiced by the dismissed
party’s failure to cooperate in discovery, (2) whether the dismissed
party was warned that failure to cooperate could lead to dismissal,
and (3) whether less drastic sanctions were imposed or considered
before dismissal was ordered . . . .
Dismissal is the sanction of last resort. It should be imposed only
if the court concludes that the party’s failure to cooperate in
discovery was willful, in bad faith, or due to its own fault.
115 F.3d at 552 (citations and internal quotation marks omitted).
The Sixth Circuit has also stated, “Dismissal is generally imposed only for egregious
misconduct, such as repeated failure to appear for deposition . . . .” Regional Refuge Systems v.
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Inland Reclamation Co., 842 F.2d 150, 155 (citation omitted, emphasis in original).
Under the circumstances, the Court agrees that the sanctions sought by Plaintiff are
overly harsh and punitive. Defendant Nelson failed to appear for one properly noticed
deposition. Two days before the deposition was to occur, he gave notice to his attorneys that he
would be out of town working and unable to attend. Moreover, Plaintiff filed her Complaint on
November 6, 2012. According to Defendant’s Response to the instant Motion, Plaintiff did not
express a desire to take Defendant Nelson’s deposition until early November 2013.
Additionally, the parties had filed two Motions to extend deadlines in the Initial Case
Management Order, and it does not appear that Plaintiff’s counsel was in any particular hurry to
take Mr. Nelson’s deposition.
Applying the factors discussed above, the Court concludes that Plaintiff has not been
overly prejudiced by Mr. Nelson’s failure to appear for his deposition. As discussed above,
counsel’s trip to Birmingham was not a waste of time. Additionally, the trial of this case is set
for June 10, 2014. The parties have agreed that they will not file dispositive Motions. Thus
there is plenty of time for Mr. Nelson’s deposition to occur. Second, insofar as the record
shows, Mr. Nelson was not warned that failure to cooperate could lead to dismissal. The Court
does not emphasize this factor, because Mr. Nelson is represented by counsel, who presumably
understands the possible sanction of dismissal and/or default. Third, less drastic sanctions were
not sought or imposed. As discussed above, Plaintiff has not sought to compel Mr. Nelson to
appear for a deposition, although Plaintiff does not necessarily have to do this under Rule 37(d).
The attorneys’ fees and expenses sought by Plaintiff are quite surprising. In her Motion
and in the Declaration of her counsel, Plaintiff essentially glosses over the fact that her counsel’s
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trip to Birmingham was not a wasted trip. In fact, Plaintiff’s counsel actually took the deposition
of the corporate representative as he had requested. The Court is rather astounded that Plaintiff’s
counsel would attempt to claim more than $5,000 in attorneys’ fees and expenses for his trip to
Birmingham when he would have generated the same fees and incurred the same expenses in
traveling to Birmingham for only one deposition (the deposition of the corporate representative
that he actually took).2 These circumstances would “make an award of expenses unjust.” See
Fed. R. Civ. P. 37(d)(3).
As discussed above, applicable Rules allow the Court to “issue further just orders.”
Under the circumstances, the Court concludes that the appropriate sanction for Mr. Nelson’s
failure to appear at his deposition is an Order from the Court requiring him to give a deposition.
Therefore, Defendant Carl Nelson is hereby ORDERED to present himself for a
deposition in Nashville, Tennessee, within thirty (30) days of entry of the instant Order. If he
fails to do so, the undersigned will recommend that a default judgment be entered against him.
In all other respects, the instant Motion, including the request for attorneys’ fees and
expenses (Docket No. 33) is DENIED.
IT IS SO ORDERED.
E. Clifton Knowles
United States Magistrate Judge
2
Plaintiff’s counsel makes no attempt to separate the time he spent preparing for Mr.
Nelson’s deposition versus the time he spent preparing for the deposition of the Watkins’
representative. Even the time he spent preparing for Mr. Nelson’s deposition will not be wasted,
however, if Plaintiff’s counsel is able to take Mr. Nelson’s deposition.
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