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Kuberski v. Allied Recreation Group, Inc.

United States District Court, N.D. Indiana, Fort Wayne Division

August 3, 2017



          Susan Collins, United States Magistrate Judge.

         Before 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.

         The 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.


         On 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).

         A. Mr. Kuberski's Deposition

         On 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.[1] (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).

         Eventually, 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.[2] (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 ¶ 7).

         During 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.[3] (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.[4] (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).

         In the 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, Terlep stated:

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).

         On 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.”)).

         On 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).[5] 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).

         The 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).

         The 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).

         B. The ...

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