Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00970-JJF Document 97 Filed 12/13/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE
TERRY L. SNYDER, )
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Plaintiff, ) C.A. No. 04-970(JJF)
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V- )
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CITISTEEL USA, INC. )
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Defendant. )
PLAINTIFF’S RESPONSE IN OPPOSITION T()
])EFENDANT’S MOTION FOR COSTS AND SANCTIONS
Plaintiff Terry Snyder, by and through her undersigned counsel, hereby responds in
opposition to Defendant’s Motion for Costs and Sanctions associated with Plaintiffs failure to
appear for two depositions due to illness, and in support thereof] states the following:
l. Defendant’s Motion for Costs and Sanctions concerns reimbursement for $280.00
in court repo1ter’s fees for two deposition cancellations by Plaintiff that occurred within the same
week due to continued illness. The first deposition was properly noticed by the Defendant and
was scheduled for Wednesday, September 27, 2006. Plaintiff left a voicemail message for
undersigned counsel before business hours on September 27, 2006 to advise that she was unable
to attend her deposition. because of a migraine headache. Shortly thereafter, undersigned counsel
telephoned Defendanfs counsel to advise that Plaintiff would not be able to attend the deposition
because of a migraine headache.
2. On Thursday, September 28, 2006, undersigned counsel notified Defendant’s
counsel that Plaintiff would be available for her deposition on Friday, September 29, 2006 (Def’ s
Ex. I). However, before business hours on Friday, Plaintiff left a voicemail again explaining that
she was suffering from another migraine headache and that she would be unable to attend her
deposition. Thereafter, undersigned counsel notified Defendanfs counsel that she would be
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Case 1:04-cv-00970-JJF Document 97 Filed 12/13/2006 Page 2 of 4
unable to attend because of continued migraines.
3. Defendant’s counsel informed undersigned counsel that Plaintiff would be
responsible for the court reportcr’s costs for the two missed depositions. Undersigned counsel
requested that the bill be forwarded to undersigned eounsel’s office and informed Defendant’s
counsel that it would. then be forwarded to the Plaintiff for payment.
4. Plaintiff is currently taking Naproxen, Alprazolam, and Lyrica; all of which
identify headaches as a possible side effect. (Exhibit A). Defendant has subpoenaed Plaintiff’ s
medical/prescription records and therefore, Defendant had notice that a possible side effect of her
many medications was headaches. Further, Plaintiff eventually sought medical treatment for her
persistent headaches with her primary care physician, Dr. Goodman. Plaintiff recently obtained a
copy of Dr. Goodmans records of October 2, 2006 which indicate, in part, that Plaintiff had
been having headaches for some time. Dr. Goodman’s records also indicate that Plaintiff has a
history of disc herniation in neck and back. "Plaintiff` s pain changes all the time, sometimes pain
is in back of head, sometimes across forehead, Sometimes behind eye. . ." (Exhibit B).
5. As soon as Plaintiff recovered from her migrmne headaches and the parties were
able to coordinate a date for her deposition, Plaintiff attended the rescheduled deposition on
October 17, 2006.
6. Defendant’s counsel forwarded a copy of the court reporter’s bill in the am.ount of
$280.00 on or about October 16, 2006. Defendant’s counsel explained that her firm had paid the
bill and that Defendant’s counsel’s firm was seeking reimbursement in the amount of $280.00.
7. Defendant’s counsel is fully aware that Plaintiff is indigent and not currently
employed and therefore, has no income. Thus, it was more than evident to Defendant that it may
take Plaintiff some reasonable period of time to reimburse ]Defendant’s counscl’s law firm for the
cancelled deposition fees.
8. Plaintiff was able to borrow the money from a relative and payment was made to
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the lirm of Young Conaway Stargatt & Taylor in the amount of $280.00 on December 7, 2006
for the depositions Plaintiff had to cancel due to illness. (See Exhibit C).
9. Federal Rule of Civil Procedure 37 (d) provides for sanctions if a party fails to
appear for a properly noticed deposition uniess the court finds that the failure was substantially
justified or that other circumstances make an award of expenses unjust. Haraway v. NASCAR,
C.A. No. 98—522—KAJ, 2003 U.S. Dist. LEXIS 3460, at *13 (D. Del. Jan. 28, 2003). In the
instant case, Plaintiff was clearly suffering from a series of debilitating migraine headaches the
week of her scheduled depositions and was unable to attend due to illness. Moreover, Plaintiff
has since paid the cancellation fees. What is more, Plaintiff is indigent and was not acting in bad
faith by her delay in payment. Thus, a hardship expense of $560.00 for a minor delay in payment
is unjust.
10. Defendant’s counsel did not contact undersigned counsel to inform undersigned
counsel that she intended to tile a motion for sanctions for the unpaid cancellation fees prior to
iiling this motion. This would have constituted a reasonable ejfort to resolve the matters set
forth in the Motion for Sanctions pursuant to Rule 7.1.1. Had Defendant’s counsel done so,
undersigned counsel would have had an opportunity to confer with her client and Plaintiff would
have made every effort to obtain the cancellation fees before being sanctioned.
WHEREFORE, Plaintiff respectfully requests that this Court deny Defendant’s Motion
for attomeys’ fees incurred in connection with the cancelled depositions and the Defendant’s
preparation of its Motion.
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Case 1:04-cv-00970-JJF Document 97 Filed 12/13/2006 Page 4 of 4
MARGOLIS EDELSTEIN
/s/ Lori A. Brewington
Jeffrey K. Martin, Esquire (#2407)
Lori A. Brewington, Esquire (#4522)
1509 Gilpin Avenue
Wilmington, Delaware 19806
(302) 777-4680 Phone
Attorneys for Plaintiff
December 13, 2006
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