Free Motion for Sanctions - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:03-cv-02485-MSK-PAC Camille Melonakis-Kurz, individually and on behalf of other similarly situation employees, and other individuals who have consented to join this action, Plaintiff, v. Heartland Home Finance, Inc., Defendant. ______________________________________________________________________________ DEFENDANT'S MOTION FOR SANCTIONS AGAINST RON GUNDEL ______________________________________________________________________________ Comes now Defendant Heartland Home Finance, Inc. ("Heartland" or "Defendant"), by counsel and pursuant to Federal Rules of Civil Procedure 30(d)(3) and 37(d), hereby moves this Court to order former Plaintiff Ron Gundel ("Gundel") to pay the reasonable expenses, including attorney's fees, incurred by Defendant as a result of his failure to appear for his deposition. In support of this motion, Defendant states as follows: I. Relevant Facts 1. 2. Defendant properly coordinated prior attempts to depose Gundel. Counsel for Defendant conferred in good faith with Plaintiffs' counsel to schedule

mutually agreeable dates of depositions. 3. Despite repeated attempts to find a mutually agreeable date for his deposition and

even reaching agreement, on three separate occasions, Gundel failed to appear each time.

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4.

Defendant's representatives and counsel traveled to Cleveland, Ohio during the

week of November 8, 2005, pursuant to a Notice of Deposition set September 15, 2005, for the purpose of taking Plaintiffs' depositions, including Gundel's deposition. Gundel did not appear for his deposition. 5. On December 20, 2005, Defendant's representatives and counsel again traveled to

Cleveland to take rescheduled depositions. Gundel was allegedly available on that date, but Plaintiffs' counsel was unable to provide an attorney during the scheduled time. 6. Defendant's counsel continued its efforts to reschedule Gundel's deposition during

the months of January and February 2006. On February 15, 2006, Plaintiffs' counsel informed Defendant's counsel that Gundel would be available on February 17, 2006. Despite the

incredibly short notice, Defendant's representative and counsel agreed to travel to Cleveland to take Gundel's deposition on that date. 7. On February 16, 2006, Defendant's counsel faxed Plaintiffs' counsel written

notice of Gundel's deposition. (Exhibit A). 8. On February 17, 2006, Defendant's representatives and counsel traveled to

Cleveland for the third time. Gundel was the sole deponent on that date. 9. On February 17, 2006, Plaintiffs' counsel notified Defendant's counsel, one hour

prior to the scheduled start time of the deposition, that Gundel would not appear. That same day, Gundel gave notice of withdrawal from this action. (Exhibit B). 10. Heartland, in good faith, conferred with Plaintiffs' counsel to arrange Gundel's

deposition, and to discuss sanctions for failure to appear, pursuant to Local Rule 7.1.A. Plaintiffs' counsel stated that as of February 17, 2006, they no longer represented Gundel and could not respond.

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11.

Heartland has incurred costs and attorneys' fees in preparing for Gundel's

attempted depositions. II. Sanctions Against Gundel Are Appropriate Defendant seeks to recover the costs associated with its travel to Cleveland, Ohio and attorney fees for attempting to take Gundel's deposition. On no less than three occasions, Defendant's representative and counsel traveled to Cleveland for the purpose of taking Gundel's deposition; however, he failed to appear each time. Heartland served Gundel's counsel with a proper notice, as required by Federal Rule of Civil Procedure 30(b)(1). See Fed. R. Civ. P. 5(b) ("Service ... on a party represented by an attorney is made on the attorney unless the court orders service on the party."). Federal Rule of Civil Procedure 37(d) provides that if a deponent received proper notice and fails to appear, the court "in which the action is pending on motion may make such orders in regard to the failure as are just... ." The Rule instructs further that "the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(d). Under Rule 37 a court may issue sanctions for even negligent non-compliance, "willfulness" is no longer required, but only "plays a roll in the choice of sanctions." Continental Ins. Co. v. McGraw, 110 F.R.D. 679, 683 (D. Colo. 1986); Fed. R. Civ. P. 37(d) advisory committee notes. The United States Supreme Court stated that the purpose of Rule 37 is deterrence. The court noted that even the sanction of dismissal may be appropriate "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." National Hockey

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League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 644 ( 1976). Similarly, the Tenth Circuit stated, "Neither contumacious attitude nor chronic failure is a necessary threshold to the imposition of sanctions." Ikerd v. Lacy, 852 F.2d 1256, 1259 (10th Cir. 1988) (Affirming sanctions against an attorney for not attending a scheduling conference.) Courts have found that an award of expenses and attorney fees is appropriate for a party deponent's failure to appear at a deposition. Canal Ins. Co. v. Earnshaw, 629 F. Supp. 114, 120 (D. Kan. 1985) (sanctioning defendant for not appearing at a deposition); Haraway v. National Ass'n For Stock Car Auto Racing, Inc., 213 F.R.D. 161, 166 (D. Del., 2003) (sanctioning plaintiff for not appearing at a deposition). Defendant's counsel attempted on three separate occasions to take Gundel's deposition without success. Defendant's representative and counsel traveled from Indianapolis to Cleveland on each occasion, once for the sole purpose of deposing Gundel. Gundel's actions appear to be a willful and a deliberate attempt to flaunt and ignore the spirit of Rules 26 and 30 of the Federal Rules of Civil Procedure. Accordingly, Federal Rule of Civil Procedure 37(d) instructs that sanctions, in the form of expenses and attorney fees, necessary to prevent future flagrant violations of the Rules. III. Conclusion Pursuant to Rules 30(d)(3) and 37(d) of the Federal Rules of Civil Procedure, counsel for Defendant respectfully requests that the Court order Gundel to pay the reasonable expenses, including attorneys' fees, incurred by Heartland as a result of his failure to appear, after submission and approval of an affidavit of reasonable attorney fees and costs incurred by Defendant. against Gundel are appropriate and

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Respectfully submitted, ICE MILLER LLP s/ David J. Carr David J. Carr, IN Attorney No. 4241-49 Steven F. Pockrass, IN Attorney No. 18836-49 Margaret Wielenberg, IN Attorney No. 23858-49A Beth Hatfield, IN Attorney No. 24932-49 Elizabeth T. Raymond, IN Attorney No. 24637-49 Eileen P. Huff, IN Attorney No. 25957-49 ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 (317) 236-2100 (317) 236-2219 Fax [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Sean R. Gallagher HOGAN & HARTSON LLP 1200 Seventeenth St., Suite 1500 Denver, CO 80202 [email protected] Attorneys for Defendant, Heartland Home Finance, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on February 23, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Donald H. Nichols [email protected] Paul J. Lukas [email protected] Michele R. Fisher [email protected] Sarah M. Fleegel [email protected] Jill M. Novak [email protected] Rachhana T. Srey [email protected] NICHOLS, KASTER & ANDERSON and I hereby certify that I have mailed or served the forgoing document to the following non CM/ECF participant by Certified Mail, Return-Receipt Requested, to: Ron Gundel 5177 Fenn Road Medina, Ohio 44256

s/ David J. Carr David J. Carr Attorney for Defendant, Heartland Home Finance, Inc. ICE MILLER LLP One American Square, Suite 3100 Indianapolis, IN 46282-0200 (317) 236-2100 (317) 236-2219 Fax [email protected]

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