Free Motion for Sanctions - District Court of Delaware - Delaware

Case 1:04-cv-00705-JJF

Document 39

Filed 03/21/2006

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ) ) ) ) ) ) ) ) ) ) ) )

JAMES M. KAMARA, Plaintiff, v. MICHAEL FUNDING, LLC, a Limited Liability Company of the State of New York, Defendant.

C.A. No. 04-705 JJF

MOTION FOR SANCTIONS PURSUANT TO RULE 37(d)(1)

COMES NOW the Defendant, by and through its attorneys, Parkowski, Guerke & Swayze, P.A., and requests that the Court order compensatory sanctions for Plaintiff's willful refusal to attend a properly noticed deposition. In support of the motion, Defendant states as follows: 1. On February 16, 2006, Plaintiff was served with a Notice of Deposition Duces

Tecum to be recorded by stenographic means on March 21, 2006, in the office of counsel for the Defendant. [Docket No. 38]. A copy of the Notice of Deposition is attached hereto as Exhibit A and incorporated by reference herein. 2. On February 23, 2006, Defendant's counsel sent a letter to Plaintiff a "good faith

attempt" letter attaching a second copy of the Notice of Deposition with the date and address of the deposition. A copy of the February 23, 2006 letter is attached as Exhibit B and incorporated by reference herein.

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3.

Plaintiff never contacted counsel for Defendant to question, challenge, or

reschedule the deposition. 4. On March 21, 2006, counsel for Defendant and a stenographer from Love

Reporting Services, Inc. were present at the appointed place and time for the deposition. 5. At 9:30 a.m., the stenographer was released and informed the undersigned that the

cost incurred for stenographic service was the minimum charge of $150.00. 6. Defendant incurred legal costs of $325.00 for the time spent from the scheduled

time of deposition to the time of release of the stenographer, inclusive of time spent drafting the instant motion. 7. charges. 8. Plaintiff has failed to produce the required Rule 26(a) initial disclosures or to Defendant incurred advanced costs of $150.00 for minimum stenographic

answer properly served interrogatories for which a Motion to Compel is pending. 9. This is Plaintiff's second refusal to appear for a properly noticed deposition,

having failed to appear for a deposition on November 22, 2004. 10. The discovery cutoff date is May 1, 2006.

WHEREFORE, Defendant respectfully requests that the Court: A. Order that Plaintiff reimburse Defendant $475.00 in fees and costs, payable to

"Parkowski, Guerke & Swayze, P.A." at 800 King Street, Suite 203, Wilmington, DE 19801 within 30 days of the Court's Order; B. Order that Plaintiff appear in the offices of Parkowski, Guerke & Swayze, P.A.,

800 King Street, Suite 203, Wilmington, DE 19801, at 9:00 a.m. on April 24, 2006, for oral

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deposition recorded by stenographic means under the February 16, 2006 Notice of Deposition Duces Tecum ; C. Grant such other relief as the Court deems just and appropriate.

PARKOWSKI, GUERKE & SWAYZE, P.A.

MICHAEL W. ARRINGTON, ESQUIRE (#3603) 800 King Street, Suite 203 Wilmington, DE 19801 (302) 654-3300 Attorneys for Defendant DATED: March 21, 2006