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Sik Gaek, Inc. v. Harris

United States Court of Appeals, Seventh Circuit

June 17, 2015

SIK GAEK, INCORPORATED, Plaintiff-Appellant,
v.
MARCUS HARRIS, et al., Defendants-Appellees

Submitted April 2, 2015.

As Corrected July 29, 2015.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 6624 -- James F. Holderman, Judge.

For SIK GAEK, INCORPORATED, Plaintiff - Appellant: Thomas W. Park, Attorney, KIMM LAW FIRM, Englewood Cliffs, NJ.

For MARCUS STEPHEN HARRIS, Defendant - Appellee: Marcus Stephen Harris, Attorney, MARCUS STEPHEN HARRIS LLC, Chicago, IL.

Before BAUER, POSNER, and MANION, Circuit Judges.

OPINION

Page 798

BAUER, Circuit Judge.

Plaintiff-appellant, Sik Gaek, Incorporated, sought sanctions against defendant-appellee, Marcus Harris, for fees and expenses incurred in connection with Harris' failure to attend a deposition in contravention of a court order. The district court declined to impose sanctions and closed the matter. Appellant appeals from that order.[1] We affirm.

I. BACKGROUND

In 2010, appellant filed suit in the United States District Court for the Eastern District of New York against Daniel Kim and Yogi's II, Inc., alleging trademark infringement under the Lanham Act and various state law claims. This discovery dispute arises out of that pending action.

Marcus Harris, a non-party to the underlying New York litigation, is a Chicago attorney who filed several trademark applications for Yogi's II, Inc. On July 17, 2013, appellant served Harris with a subpoena issued by the Northern District of Illinois, requiring his deposition and documents related to the trademark applications he filed for Yogi's II, Inc. The deposition did not take place on July 29, 2013, as scheduled.

On September 16, 2013, appellant filed a motion to enforce the subpoena. The district court granted the motion at a hearing on October 22, 2013, and ordered Harris to attend the deposition and produce the documents at his office at 12:00 p.m. on October 29, 2013. Appellant sent Harris, who was not present at the October 22 hearing, a copy of the order by mail and facsimile on October 23, 2013, and faxed a letter to Harris on October 28, 2013, confirming that the deposition would take place in accordance with the district court's order.

On October 29, 2013, one of the appellant's attorneys, Thomas Park, arrived at Harris' office at 11:45 a.m. to take the deposition. Harris was not there. Park spoke to Harris over the phone and, according to Park, Harris stated that he was aware of the court order and would be willing to do the deposition, but that it would take him at least one hour or more to arrive at his office. Park told Harris that if he did not arrive by 1:00 p.m. it would be treated as a " no show." The deposition did not take place. Later that evening, Harris faxed a letter to Park stating, " I have every intention of complying with the court's order ... . I can be available this week to be deposed either telephonically or by video. Please propose times that work with your schedule." Appellant did not respond to Harris' letter or attempt to reschedule. Rather, on October 30, 2013, the next day, appellant filed a motion to hold Harris in contempt for failing to attend the deposition on October 29, 2013, and seeking sanctions in the form of fees and expenses in excess of $6,800. Harris filed an affidavit attached to his reply, which explained that he was on vacation the week of October 22, 2013, celebrating his father's 70th birthday with his family in New York City, and that he first became aware of the district court's order of October 22, ...


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