Clay v. Consol Pennsylvania Coal Company

Filing 382

MEMORANDUM OPINION AND ORDER AFFIRMING 294 MAGISTRATE JUDGE'S ORDER DENYING PLAINTIFF'S MOTION SEEKING THE REVOCATION OF RICHARD CROMER'S PRO HAC VICE ADMISSION AND OTHER SANCTIONS BUT RECOMMENDING PUBLICLY REPRIMANDING RICHARD CROME R FOR HIS CONDUCT AT PLAINTIFF'S DEPOSITION. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order as well as a copy of Magistrate Judge Seibert's report and recommendation (ECF No. 294) to the Disciplinary Board of the Supreme Court of Pennsylvania. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/25/2013. (copy to counsel of record via CM/ECF; copy to Attorney Cromer and Disciplinary Bd. of PA via U.S. Mail) (nmm) Modified docket text on 9/25/2013 (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TONY B. CLAY,
Plaintiff,
v.

Civil Action No. 5:12CV92
(STAMP)

CONSOL PENNSYLVANIA COAL
COMPANY, LLC,
a foreign limited liability
company and subsidiary of
Consol Energy, Inc.,
McELROY COAL COMPANY,
a foreign corporation and
subsidiary of Consol Energy, Inc.
and CONSOL ENERGY, INC.,
a foreign corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING MAGISTRATE JUDGE’S ORDER
DENYING PLAINTIFF’S MOTION SEEKING THE
REVOCATION OF RICHARD CROMER’S PRO HAC VICE ADMISSION
AND OTHER SANCTIONS BUT RECOMMENDING PUBLICLY
REPRIMANDING RICHARD CROMER FOR HIS
CONDUCT AT PLAINTIFF’S DEPOSITION
I.

Background

This civil action involves claims of racial discrimination and
retaliation under Title VII, a claim for breach of the plaintiff’s
employment agreement, and a claim for violation of West Virginia’s
Wage Payment and Collection Act.

During the ongoing discovery

process, the defendants took the deposition of plaintiff, Tony
Clay. The plaintiff complains of several specific instances during
this

deposition

where

the

plaintiff

believes

the

conduct

of

defendants’ counsel, Richard Cromer (“Cromer”), was inappropriate.

Such conduct includes defense counsel calling the plaintiff an
“idiot” and harassing the plaintiff with questions about his
genitals.1
Following the deposition, the plaintiff filed a motion seeking
the revocation of Cromer’s pro hac vice admission and for other
additional sanctions as a result of Cromer’s conduct during the
deposition.

The plaintiff specifically requests that not only

should this Court revoke Cromer’s pro hac vice admission, but the
defendants should be limited in their use of plaintiff’s deposition
testimony, and the plaintiff should be granted attorneys’ fees and
costs, including reimbursement for all deposition charges and any
attendant fees and expenses.

In support of the plaintiff’s

argument, he argues that Cromer violated the local rules concerning
lawyer’s conduct and examination of witnesses, specifically Local
Rule

of

General

Procedure

84.01,

which

is

entitled

“Ethical

Considerations” and Local Rule of General Procedure 84.02, which is
entitled “Bias and Prejudice.”

The Local Rule regarding ethical

considerations states that “attorneys shall conduct themselves in
accordance with the Rules of Professional Conduct and the Standards
of Professional Conduct adopted by the Supreme Court of Appeals of

1

Other conduct complained of includes questioning the
plaintiff’s cognitive abilities, his spelling and writing ability,
and similar conduct. The magistrate judge, however, found that
only the questions concerning the plaintiff’s genitals and the name
calling warranted reprimand. This Court agrees and, therefore,
will refrain from discussing the other incidents in more detail.
2

West Virginia, and the Model Rules of Professional Conduct.” L. R.
Gen. 84.01.

The plaintiff provided various examples of how he

believes Cromer’s conduct violated West Virginia’s Standards of
Professional Conduct, and was thus in violation of this Court’s
Local Rules.
The defendants filed a response to the plaintiff’s motion
arguing first that the plaintiff’s motion takes Cromer’s conduct
out of context in an effort to distract this Court from plaintiff’s
lies and to secure an opportunity to again depose the plaintiff.
As to the “idiot” comment, the defendants argue that it was taken
out of context because it was spoken to plaintiff’s counsel, not
the plaintiff himself, and further it was made in response to the
plaintiff’s counsel’s remark that Cromer’s questions were “silly.”
Thus, defendants argue that it was part of a heated exchange
between counsel, for which Cromer apologized to the plaintiff.
to

the

questions

concerning

the

plaintiff’s

genitals,

As
the

defendants argue that these comments were taken out of context, as
the plaintiff’s remarks concerning his genitals, which Cromer was
asking about, are directly at issue in this case.

Therefore, the

defendants assert that Cromer’s questions were not inappropriate.
Further, the defendants argue that based on case law, Cromer’s
conduct does not warrant the invocation of this Court’s sanctioning
power.

3

United States Magistrate Judge James E. Seibert held a hearing
on the plaintiff’s motion and thereafter issued a report and
recommendation, recommending that this Court deny the plaintiff’s
motion seeking the revocation of Cromer’s pro hac vice admission
and other sanctions, but recommending that this Court publicly
reprimand

Cromer

for

his

misconduct.

In

support

of

his

recommendation, the magistrate judge stated Cromer’s conduct,
specifically calling the plaintiff an idiot and questioning the
plaintiff regarding his genitalia, falls far below the behavior
permitted by this Court’s Local Rules and is discouraged by West
Virginia’s Standards of Professional Conduct.
The magistrate judge informed the parties that they may object
to his order within 14 days from the date of the order.
the parties filed objections.
this

Court

affirms

and

None of

For the reasons set forth below,
adopts

the

magistrate

judge’s

recommendation.
II.

Applicable Law

As to nondispositive pretrial matters, a magistrate judge’s
ruling may be reversed only on a finding that the order is “clearly
erroneous or is contrary to law.”

Fed. R. Civ. P. 72(a); 28 U.S.C.

§ 636(b)(1). “A finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with a definite and firm conviction that a mistake

4

has been committed.”

United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948).
III.

Discussion

The report and recommendation of the magistrate judge is not
clearly

erroneous.

Stated

more

specifically,

it

is

clearly

correct.
Magistrate Judge Seibert recognized the practical nature of
present day litigation by acknowledging that “. . . depositions are
in their very nature adversarial, and that a deposition will not
involve routine exchanges of pleasantries.”

ECF No. 294 *2.

That

said, the magistrate judge proceeded to note the “limitations on a
lawyer’s conduct during a deposition, and a lawyer should not
engage in conduct that she would not engage in before a judge in a
courtroom.”

ECF No. 294 *2.

The recommendation then clearly

identified two particular instances of conduct that warrant a
recommendation that the court issue a public remand to attorney
Richard Cromer in his taking of the plaintiff’s deposition in this
civil action on May 27, 2013: calling the plaintiff an “idiot” and
questioning him in some detail about his genitals.
Such conduct violated the Rules of Professional Conduct and
the Standards of Professional Conduct adopted by the Supreme Court
of Appeals of West Virginia and the Model Rules of Professional
Conduct published by the American Bar Association.

These Rules

have been adopted by this Court as minimum standards by attorneys

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practicing before this Court in Local Rule of General Procedure
84.01.
Attorney

Cromer’s

outrageous

conduct

during

deposition was clearly improper and reprehensible in

the

Clay

violation of

the Local Rules of the United States District Court for the
Northern District of West Virginia, the West Virginia Rules of
Professional Conduct and the Standards of Professional Conduct.
Accordingly, this Court adopts Magistrate Judge Seibert’s
recommendation that the motion seeking the revocation of Richard
Cromer’s pro hac vice admission and other sanctions be denied but
that

attorney

reprimanded

Richard

for

his

Cromer

be,

specifically

by

noted

this

order,

conduct

at

publicly
the

Clay

deposition.
In addition, as suggested, this Court hereby notifies attorney
Cromer that any further conduct of the nature so sanctioned will
lead

this

Court

to

consider

revocation

of

his

pro

hac

vice

admission and consideration of whether he should be permitted to
continue to practice before this Court.
IV.

Conclusion

For the reasons stated above, the report and recommendation of
the magistrate judge that the plaintiff’s motion seeking the
revocation of Richard Cromer’s pro hac vice admission and other
sanctions be denied but recommending publicly reprimanding Mr.

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Cromer for his conduct at plaintiff’s deposition (ECF No. 294) is
hereby AFFIRMED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to attorney
Richard Cromer.
of

this

Further, the Clerk is DIRECTED to transmit a copy

memorandum

opinion

and

order

as

well

as

a

copy

of

Magistrate Judge Seibert’s report and recommendation (ECF No. 294)
to the Disciplinary Board of the Supreme Court of Pennsylvania,
District 4 Office, Frick Building, Suite 1300, 437 Grant Street,
Pittsburgh, Pennsylvania 15219.
DATED:

September 25, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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