Free Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02485-MSK-PAC

Document 370

Filed 03/15/2006

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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO CASE NO. 03-cv-02485 MSK-PAC Camille Melonakis-Kurz, individually and on behalf of other similarly situated employees, Plaintiffs, v. Heartland Home Finance, Inc., Defendant. PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS AGAINST RON GUNDEL ______________________________________________________________________________ INTRODUCTION Defendant Heartland Home Finance ("Defendant") is asking that Ronald Gundel ("Gundel") be sanctioned for failing to appear for his deposition. Gundel has already been punished for his choice not to participate in a deposition. He has withdrawn from the case and given up his overtime claim worth $23,199.36. In addition, the Court has allowed Defendant leave to subpoena Gundel for a deposition even though he is no longer a plaintiff in this action. We therefore respectfully request that Defendant's motion be denied.

FACTS AND LEGAL ANALYSIS 1. Federal Rule 37(d) Does Not Apply.

Defendant cites Rule 37(d) of the Federal Rules of Civil Procedure in support of its motion for sanctions. However, Rule 37(d) only applies to "a party of an officer director, or managing agent of a party . . . ." Fed. R. Civ. P. 37(d). Gundel was not a party to the case on February 17, 2006, at the time his deposition was scheduled to occur.

Case 1:03-cv-02485-MSK-PAC

Document 370

Filed 03/15/2006

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On February 17, 2006, Gundel, having serious concerns over whether his overtime claim was worth his time appearing at a deposition, contacted us a few hours before the deposition to express those concerns.1 At that time, he decided to withdraw from the case and give up his overtime claim rather than attend his deposition.2 He faxed us a withdrawal form to file with the Court, and we contacted Defendant's counsel immediately to apprise them of the situation.3 We also filed the withdrawal form with the Court a little over an hour before the deposition was to take place.4 Defendant's assertion that Gundel did not appear for prior depositions is disingenuous. With respect to the depositions that were scheduled for the week of November 8, 2005, we were unable to get a hold of Gundel to inform him of his deposition, and told Defendant that he was one of the Plaintiffs we were unable to confirm.5 We went forward with several other

depositions in that location that week with the understanding that those who were not confirmed would not occur that week.6 Defendant did not lose any money or time due to the fact we were unable to reach Gundel at that time. With respect to scheduling Gundel's deposition for December 20, 2005, it was no fault of Gundel that his deposition did not occur that day. Gundel contacted us the afternoon of

December 19th to inform us that he could appear for a deposition on the 20th.7 However, Plaintiffs counsel was unavailable for his deposition that day.8

1 2

Novak Aff. at ¶ 2. Id. 3 Id. 4 Fisher Aff., Ex. 3 (see Ex. B attached to this transcript). 5 Fisher Aff, Ex. 1. 6 Fisher Aff., Ex. 1. 7 Fisher Aff., Ex. 2. 8 Id.

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Filed 03/15/2006

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Since Gundel was not a party to the case and was never subpoenaed for the February 17, 2006 deposition, the Federal Rules do not support Defendant's request for sanctions and its motion must be denied.

2.

Gundel Has Already Been Sanctioned.

Further sanctions of Gundel are inappropriate in this case. He was a Plaintiff in a case involving close to 1,000 plaintiffs, who decided to withdraw rather than appear for a deposition. He gave up a claim of $23,199.36,9 which benefits Defendant and far exceeds any fees and costs Defendant incurred as a result of Gundel's failure to appear. CONCLUSION Based on the foregoing, Defendant's motion for sanctions against Gundel should be denied. Dated: 03/15/06 NICHOLS KASTER & ANDERSON, PLLP s/Michele R. Fisher Donald H. Nichols, MN Bar No. 78918 Paul J. Lukas, MN Bar No. 22084X Michele R. Fisher, MN Bar No. 303069 Jill M. Novak, MN Bar No. 343456 4600 IDS Center, 80 S. 8th St. Minneapolis, MN 55402 Telephone (612) 256-3200 ATTORNEYS FOR PLAINTIFFS

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Fisher Aff. at ¶ 3.

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