United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge.
the Court in this breach-of-warranty action is a motion for
sanctions under Federal Rule of Civil Procedure 37(d) filed
by Defendant Allied Recreation Group, Inc.
(“Allied”), against Plaintiff Joseph Kuberski
(“Mr. Kuberski”), seeking to recover Allied's
attorney's fees and travel expenses for the December 1,
2016, deposition of Mr. Kuberski and an August 22, 2016,
inspection of the recreational vehicle (“RV”) at
issue, together with Allied's attorney's fees for
preparing the instant motion. (DE 25). Briefing on the
motion, including a sur-response and a sur-reply, is now
complete (DE 30; DE 39; DE 40-1; DE 45), and the motion is
ripe for adjudication.
motion was referred to the undersigned Magistrate Judge by
District Judge Rudy Lozano for disposition. (DE 26). For the
following reasons, Allied's motion for sanctions is
GRANTED IN PART and DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
November 3, 2015, Mr. Kuberski filed this breach-of-warranty
suit against Allied, a supplier of RVs, alleging that the RV
that he had purchased from Allied's dealer was defective
and that Allied had failed to reasonably repair the defects.
(DE 1). On January 8, 2016, the Court conducted a preliminary
pretrial conference, setting a discovery deadline of December
12, 2016. (DE 8). Allied moved to amend these deadlines on
several occasions due to the parties' various scheduling
challenges, which the Court granted, resulting in a discovery
deadline of February 17, 2017. (DE 10 to DE 15; DE 17). In
January 2016, Ronald Burdge (“Burdge”), counsel
to Mr. Kuberski, and Bruce Terlep (“Terlep”),
counsel to Allied, began attempting to schedule dates for
Allied's deposition of Mr. Kuberski and for Allied's
inspection of the subject RV. (DE 30-13 at 1 ¶ 2).
Mr. Kuberski's Deposition
February 15, 2016, Terlep noticed Mr. Kuberski's
deposition for April 14, 2016, in Fayetteville, North
Carolina, which was the location of Mr. Kuberski's
residence set forth in his initial disclosures. (DE 25 at 2;
DE 30-13 at 1 ¶ 3). Burdge, however, responded that Mr.
Kuberski had moved from North Carolina to Utah. (DE 30-3; DE
30-13 ¶ 3). Terlep then re-noticed the deposition for
the same date, but with the location in St. George, Utah. (DE
30-4; DE 30-13 ¶ 3). Later, however, Terlep sought to
reschedule the deposition; this task proved challenging, as
Mr. Kuberski was unavailable during the months of May and
June and both counsel also had various commitments. (DE 30-6;
DE 30-13 at 2 ¶ 4; DE 39-1).
Mr. Kuberski's deposition was scheduled for August 30,
2016, in St. George, Utah. (DE 30-12; DE 30-13 at 2 ¶
5). On August 30, 2016, Burdge and Mr. Kuberski timely
appeared for the deposition at 10:00 a.m. (DE 30-4; DE
30-13 at 2 ¶ 7). But Terlep arrived 30 minutes late,
failing to appreciate the time change between Las Vegas,
where the nearest airport is located, and St. George, which
is a two-hour drive from the airport. (DE 30-14; DE 39 at 6).
The deposition then commenced at 11:30 a.m. (DE 30-13 at 2-3
the deposition, Mr. Kuberski produced a spreadsheet of
alleged defects and a written list of maladies that Mrs.
Kuberski had prepared, which had not been previously produced
in discovery. (DE 25-1 at 2-6; DE 39-11; DE 39-12). Neither
Burdge, nor Terlep, was aware of this spreadsheet and list of
maladies prior to the deposition. (DE 25-1 at 2; DE 30-13 at
3 ¶ 8). Some of the information on the spreadsheet and
list of maladies had been included in another document (a
Craigslist posting) that had been previously produced;
however, the spreadsheet contained dates, where the previous
disclosure did not. (DE 25-1 at 3-4; DE 30-13 at 3 ¶ 8;
DE 39 at 7). Mr. Kuberski's deposition concluded at 4:00
p.m. (DE 39-13 at 2), and there is a difference of opinion as
to why it concluded at that time. Burdge claims that Terlep
had to catch a return flight to Chicago. (DE 30-13 at 3
¶ 9). Terlep, however, asserts that it became apparent
to him during the deposition that he would need to take a
second trip to Utah in order to: (1) depose Mrs. Kuberski, as
Mr. Kuberski deferred to her throughout the deposition,
claiming a lack of knowledge on salient issues; and (2) have
an opportunity to fully digest the newly-produced spreadsheet
and list of maladies, which were dense and contained new
temporal information. (DE 25-1 at 8-10; DE 39 at 7-8).
Counsel's dispute about this point, however, is
immaterial, as regardless of the reasons, they agreed to
adjourn the deposition at 4:00 p.m. and reconvene it at a
later date in conjunction with Mrs. Kuberski's
deposition. (DE 39-13 at 2).
weeks that followed, Burdge and Terlep attempted to further
schedule the depositions of Mr. and Mrs. Kuberski. (DE 30-13
at 3-4 ¶ 10). Again this was challenging due to
counsel's schedules and that Burdge injured his knee and
underwent surgery, which prevented him from traveling until
after November 1, 2016. (DE 25 at 4; DE 25-1 at 7; DE 30-13
at 3-4 ¶ 10). In an email to Burdge on October 27, 2016,
I would suggest conducting the depositions of Mr. and Mrs.
Kuberski on either December 1 or December 2. As we discussed,
I would expect that we could complete both depositions in a
single day. Please let me know if either of these dates work
for your schedule. . . . If I do not hear back from you by
November 7, I will plan to notice the Kuberskis'
deposition on December 2 . . . .
(DE 25-1 at 7). Burdge did not respond to this email. (DE 25
at 5; DE 30-13 at 4 ¶ 12).
November 8, 2016, Terlep sent another email to Burdge,
attaching notices of depositions, setting the depositions of
Mr. and Mrs. Kuberski for December 1, 2016, at 9:00 a.m., and
1:00 p.m., respectively, in St. George, Utah. (DE 25 at 5; DE
25-1 at 8-11). Terlep sent the email with a
“receive-receipt tag” and a “read-receipt
tag.” (DE 39 at 8; DE 25 at 5). At 9:17 a.m. that same
day, Terlep received a notice confirming that the email had
been received by Burdge. (DE 25 at 5; DE 25-1 at 12, 31). He
then received a read notification, indicating that Burdge had
opened and read the email and attachments at 9:19 a.m. (DE 25
at 5; DE 25-1 at 13, 31). Terlep did not receive any
communication back from Burdge concerning the deposition
notice, but Terlep did not consider this unusual, as Burdge
had previously explained that it was his practice to contact
opposing counsel upon receipt of a deposition notice only if
there was a conflict with the noticed date. (DE 25 at 5; DE
25-1 at 14 (“When a formal deposition notice is
received, if we have no scheduling problem on our end, we
normally do not send a confirmation to the attorney who sent
use the notice.”)).
December 1, 2016, Terlep and a court reporter appeared at
9:00 a.m. in St. George, Utah, to commence Mr. Kuberski's
deposition. (DE 25 at 6). However, by 10:05 a.m., Mr.
Kuberski and Burdge still had not appeared. (DE 25 at 6).
Terlep contends that he then telephoned Burdge in Ohio and
reached Burdge's assistant, who informed Terlep that
Burdge was “on the other line” (DE 25 at 6; DE
25-1 at 32; DE 39-14 at 2); Burdge, however, denies that his
office received a phone call from Terlep on the morning of
December 1, 2016 (DE 30 at 8-9; DE 30-26; DE 30-27; DE
3-28). In any event, it became apparent to Terlep
that Burdge was still in Ohio and that the deposition would
not go forward. (DE 25 at 6; DE 25-1 at 19). Terlep then made
a record of the non-appearance of Mr. Kuberski and his
counsel. (DE 25 at 6-7; DE 25-1 at 16-36). At 5:18 p.m.,
while Terlep was waiting in the Las Vegas airport to board a
plane back to Chicago, Terlep emailed Burdge, inquiring why
he and his client had failed to appear for the deposition.
(DE 25 at 7; DE 25-1 at 37).
next morning, December 2, 2016, Burdge sent two emails to
Terlep, stating that Burdge had checked his files and with
his staff, that the deposition notice had never been
received, and that he was unaware of the deposition. (DE 25
at 7; DE 25-1 at 38-40; DE 30-13 at 4-5 ¶¶ 13-15).
Three days later, Terlep responded to the email, asserting
that Burdge was incorrect as evidenced by the
“receive-receipt tag” and the “read-receipt
tag” on the November 8, 2016, email transmitting the
notice of deposition. (DE 39 at 8-9; DE 25 at 7; DE 39-19).
depositions of Mr. and Mrs. Kuberski were later rescheduled
per agreement of counsel and were completed on January 23,
2017. (DE 30-13 at 5-6 ¶ 17).