Panzer v. Swiftships, LLC

318 F.R.D. 326, 2016 WL 4578915
CourtDistrict Court, E.D. Louisiana
DecidedAugust 29, 2016
DocketCV CASE NO. 15-2257
StatusPublished

This text of 318 F.R.D. 326 (Panzer v. Swiftships, LLC) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Panzer v. Swiftships, LLC, 318 F.R.D. 326, 2016 WL 4578915 (E.D. La. 2016).

Opinion

ORDER

JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

Before the Court is the Motion to Compel Deposition filed by Paul Panzer (“Panzer”). (Rec. Doc. 74). For the following reasons, the motion is GRANTED. Defendants ICS Nett, Inc., Swiftships, LLC, Swiftships Shipbuilders, LLC, Swift Group, LLC, and ICS Marine, Inc. (“Defendants”) are hereby ordered to produce their corporate representatives for deposition in New Orleans within ten days.

Background

This lawsuit was filed on June 21, 2015. Panzer seeks damages for alleged violations of the Fair Credit Reporting Act (“FCRA”) by the Defendants for obtaining background checks on Panzer, and others similarly situated, without proper authorization and then terminating Panzer based on incorrect information in those reports without providing FCRA required disclosures. (Rec. Doc. 13, p. 1). Panzer amended his complaint on September 15, 2015. (Id.). On June 8, 2016, Panzer moved for leave to file a second amended complaint seeking to add another defendant. (Rec. Doc. 45). The motion was denied by the magistrate judge, finding that with an upcoming trial date, the defendants would suffer prejudice at having a party joined so late in the proceeding. (Rec. Doc. 61, p. 5). Trial is set for October 24, 2016, and the parties face a discovery deadline of August 29, 2016.

Panzer’s motion to compel concerns the Rule 30(b)(6) coxporate depositions of the Defendants. About six weeks before the discovery deadline on July 19, 2016, Panzer noticed the Defendants’ Rule 30(b)(6) depositions to occur twenty-one days later on August 8, 2016, at Defendants’ counsel’s office in New Orleans. (Rec. Doe. 74-1, p. 2). To accommodate Defendants’ counsel’s schedule, Panzer re-noticed the depositions to August 15, 2016. (Id.). Panzer claims that Defendant’s counsel announced on August 12, 2016 that the depositions needed to be moved to August 18, 2016. (Id.). As such, the depositions were set and then rescheduled twice; all three settings were accompanied by a 30(b)(6) Notice reflecting the scope of the [328]*328depositions and their location in New Orleans.

On or about August 16, 2016, Defendants sent Panzer a letter objecting, for the first time, to the taking of the corporate depositions in New Orleans, citing case law holding that the deposition of a corporate defendant should typically be held at the corporation’s principal place of business. (Rec. Doc. 74-7). No dates or other information that could facilitate taking the depositions in Virginia were provided. (Rec. Doc. 74-1, p. 2).

Panzer’s counsel submits that he is willing to travel to Virginia to take the corporate deposition, but argues that there is no basis for Defendants to refuse the corporate depositions entirely. (Id. p. 3). Indeed, he certified he would withdraw the Motion to Compel if Defendant would provide a date, time, and place in Virginia on the record. (Rec. Doc. 74-8). He argues that parties are not permitted to unilaterally cancel a noticed deposition and that Defendants should be sanctioned for doing so. (Rec. Doc. 74-1). Panzer adds that the discovery deadline is August 29, 2016. (Idp. 4).

In their opposition, Defendants complain about the timing, the location, and the scope of those depositions. Defendants further “object to Plaintiffs dilatory, redundant, and otherwise burdensome tactics that drive up the cost of this suit—needlessly so.” (Rec. Doc. 82, p. 2). Therefore, they cancelled the New Orleans depositions. (Id.). Defendants claim that delays in setting the corporate depositions are a result of ongoing settlement negotiations. (Rec. Doc. 82, p. 2). They suggest that Panzer waited until the eve of the discovery deadline to notice the corporate depositions and question Panzer’s motivation in seeking the depositions at all, stating that Panzer’s request for corporate depositions is but a means of “ratcheting up litigation costs.” (Id.). Defendants further argue that the scope of the deposition is redundant of the voluminous discovery already produced. (Id.). Finally, Defendants argue that while the parties have discussed traveling to Virginia for the deposition, Panzer has not noticed a deposition at any of the Defendants’ principal places of business. (Id. p. 3).

In its reply, Panzer points out that in filing its motion to compel, Panzer offered to withdraw the motion if Defendants would simply provide—on the record—a date, time and address for the depositions. Defendants still have not done so. Panzer adds that Defendants’ complaint about the purported redundancy of the depositions was raised for the first time in its opposition to the motion to compel and, in any case, Panzer insists that corporate depositions of the parties itself is not controversial.

Law and Analysis

A party cannot unilaterally cancel a properly noticed deposition. See Richardson v. BNSF Ry. Co., No. CIV. A. 13-5415, 2014 WL 5317866, at *2 (E.D.La. Oct. 16, 2014) (“A lawyer has no authority unilaterally to cancel a deposition that is reasonably noticed in writing pursuant to Fed. R. Civ. Proc. 30(b)(1), which is a step only the court is empowered to take.”). Indeed, where a party “fails, after being served with proper notice, to appear for that person’s deposition,” the Federal Rules of Civil Procedure provide that the Court must, at a minimum, require the cancelling party (and/or it’s counsel) to “pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. Proc. 37(d)(1)(A); see Rangel v. Gonzalez Mascorro, 274 F.R.D. 585, 592-93 (S.D.Tex.2011) (explaining that expenses must be awarded). Additional sanctions for failing to appear may be awarded “depending on the circumstances of each case.” Shumock v. Columbia/HCA Healthcare Corp., No. CIV. A. 99-1777, 1999 WL 1021829, at *1 (E.D.La. Nov. 10,1999).

Once a deposition is properly noticed, “the party is obliged to appear until some order of the court excuses attendance” Barnes v. Madison, 79 Fed.Appx. 691, 707 (5th Cir.2003) (affirming the district court’s award of sanctions for failure to appear for a properly noticed deposition even where a motion for protective order was filed because the motion was filed too late and not ruled on before the deposition was set to occur). Further, “parties may not escape sanctions simply by notifying the attorney who noticed the [329]*329deposition that they will not appear.” Peyman v. Rayan, No. 2:09-CV-01384-KJD, 2011 WL 976925, at *1 (D.Nev. Mar. 18, 2011). For example, in Richardson, the plaintiff noticed depositions 18 days in advance. 2014 WL 5317866, at *2. After initial agreement on the date and place for the deposition, five days before the deposition date, defense counsel canceled the depositions. The court found the defendant’s basis for objection to be insufficient to establish good cause for a protective order, but importantly, the court underscored that the appropriate procedure for a defendant opposing a deposition would be to file a motion to quash or motion for protective order. The court awarded the plaintiff its reasonable attorney’s fees.

Here, Panzer noticed the corporate depositions six weeks in advance of the discovery deadline. This was more than enough lead time.

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Related

Barnes v. Madison
79 F. App'x 691 (Fifth Circuit, 2003)
Rangel v. Gonzalez Mascorro
274 F.R.D. 585 (S.D. Texas, 2011)

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Bluebook (online)
318 F.R.D. 326, 2016 WL 4578915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/panzer-v-swiftships-llc-laed-2016.