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Marine Lumber Co. v. Precision Moving and Storage, Inc.

United States District Court, D. Hawaii

August 16, 2017

MARINE LUMBER CO., Plaintiff,
v.
PRECISION MOVING AND STORAGE, INC., Defendant.

          MEMORANDUM OPINION AND ORDER ON DISCOVERY ISSUES

          Richard L. Puglisi United States Magistrate Judge

         Before the Court are two motions: Plaintiff's Motion to hold Defendant in Contempt for Failure to Appear and for Sanctions for Discovery Abuse, filed July 3, 2017 (“Depositions Motion”) and Plaintiff's Motion for Sanctions for Discovery Abuse (“Discovery Abuse Motion”). ECF Nos. 80, 82. On July 17, 2017, Defendant filed its Opposition to the Deposition Motion, and on July 31, 2017, Plaintiff filed its Reply. ECF Nos. 89, 95. On July 21, 2017, Defendant filed its Opposition to the Written Discovery Motion, and on August 4, 2017, Plaintiff filed its Reply. ECF Nos. 90, 98. A hearing on the Motions was held on August 16, 2017. ECF Nos. 94, 104. Having reviewed the submissions of the parties and applicable law, and for the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the Motions.

         BACKGROUND

         This dispute arises out of an order of wooden crates called “lift vans” allegedly shipped from Marine Lumber Co. (“Marine”) in Oregon to Precision Moving and Storage, Inc. (“Precision”) in Hawaii. On June 30, 2016, Marine filed its Complaint alleging that Precision owes it payment for the lift vans. Discovery was stayed from December 23, 2016, until March 28, 2017, while Marine's motion for summary judgment was pending. ECF Nos. 46, 48. The parties resumed discovery in April. ECF No. 77-1 at 12. Marine received discovery responses in May. ECF No. 21-1 at 11; see also ECF Nos. 82-9; 82-10; 82-11; 82-12. In July, Marine filed the instant Motions. ECF Nos. 80, 82.

         DISCUSSION

         I. Depositions Motion

         Marine argues that depositions of Precision's employees and corporate representative were properly noticed for depositions set for June 8 and 9, 2017 and that Precision's counsel and witnesses failed to appear or move for a protective order. See ECF No. 80-1 at 19. Marine seeks an order holding Precision, its counsel, and its five witnesses in contempt of court; $15, 000 in expenses for appearing at the depositions and bringing this Depositions Motion; and terminating sanctions, including damages of $130, 690.00, interest, and attorneys' fees and costs. ECF No. 80 at 3-5.

         First, Marine requests to hold Precision and its witnesses in contempt under Rule 45. See ECF No. 80-1 at 19, 33. “Under Federal Rule of Civil Procedure 45(g), a party may seek an order to show cause as to why a contempt citation should not issue if a person ‘fails without adequate excuse to obey [a] subpoena or an order related to it.'” AngioScore, Inc. v. TriReme Med., Inc., No. 12-CV-03393-YGR(JSC), 2014 WL 6706898, at *1 (N.D. Cal. Nov. 25, 2014) (quoting Fed.R.Civ.P. 45(g)). However, courts are generally reluctant to initiate such contempt proceedings absent a prior court order compelling compliance, even where no such order was previously sought, and especially when attorneys issue subpoenas as a matter of course and without judicial involvement. In re Consol. Meridian Funds, No. 10-17952, at *10 (Bankr. W.D. Wash. Apr. 5, 2013); Dallas Buyers Club, LLC v. Doe-71.238.61.141, No. 3:16-CV-00551-AC, 2016 WL 6208268, at *2 (D. Or. Oct. 21, 2016) (citing S.E.C. v. Hyatt, 621 F.3d 687, 694 (7th Cir. 2010)). Here, the subpoena was issued by Marine as a matter of course, and there is no prior order compelling compliance with it or otherwise compelling attendance at depositions. Therefore, contempt proceedings are not appropriate.

         Second, Marine requests sanctions under Rule 37 for the missed depositions. See ECF No. 80-1 at 20, 34. Rule 37 provides that a party's failure to appear a deposition is not excused unless the party has moved for a protective order. Fed. R. 37(d)(1)(A). Rule 37 grants courts discretion to sanction a party that fails to appear at its deposition. Fed. R. 37(d)(3). Here, on April 28, 2017, Marine requested to conduct depositions of Precision's corporate representative, president, and specific employees on June 8 and 9, 2017, explaining that Marine's pro-hac vice counsel would already be in Hawaii for the parties' settlement conference. ECF No. 80-3 at 100-01. Marine noticed and issued subpoenas for the depositions on May 2, 2017. See ECF Nos. 80-4; 80-5, 80-6. In the five weeks preceding the depositions, Precision did not move for a protective order. Precision, its counsel, and its corporate representative did not appear for the depositions. See ECF Nos. 80-7; 80-8. Therefore, the Court finds sanctions against Precision are appropriate under Rule 37.

         Moreover, the Court finds that Precision's counsel has again failed to confer in good faith with Marine regarding discovery. See ECF No. 74 at 4-6 (prior order finding that “Precision's counsel did not attempt in good faith to resolve this [discovery] matter without judicial involvement”). In the weeks preceding the depositions, Precision discussed scheduling depositions with Marine and did not oppose scheduling depositions on June 8 and 9, 2017. See ECF Nos. 89-4; 89-5. In one such correspondence, Precision stated its understanding that Marine wished to reschedule the depositions of Precision's witnesses from May to June, and that Precision “will proceed forward with discovery.” ECF No. 89-25. However, on June 5, [1] 2017 -- five weeks after the initial request, three days before the depositions were set to begin, and after Marine's counsel arrived in Hawaii -- Precision informed Marine for the first time that all of Precision's witnesses and counsel were unavailable for the upcoming depositions, without explanation. ECF No. 80-1 at 19-20; ECF No. 89-27.

         For the first time in its Opposition, Precision claims that each witness and counsel had various reasons for missing the depositions, such as medical issues and a family vacation. See ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5. The Court is not persuaded by Precision's claim that each of its four witnesses and its counsel were unavailable for unrelated reasons on June 8 and 9, 2017, while Marine's counsel was in Hawaii, but that each witness was available for a number of dates beginning on June 26, 2017. See ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5.

         Even if the absences were fully justified, it would not excuse Precision's counsel's delay in conferring with its witnesses and with Marine. Precision does not appear to have conferred with its witnesses regarding depositions until June 2, 2017 - less than a week before the depositions were scheduled to begin. See ECF Nos. 89-1, 89-2, 89-3, 89-4, 89-5. Sanctions against Precision are warranted.

         Therefore, the Court ORDERS Precision's counsel and each witness noticed by Marine to appear for depositions in Honolulu, Hawaii at a time and place noticed by Marine within 30 days. Marine's counsel shall provide Precision's counsel at least two dates of availability for depositions within the next 30 days, by no later than August 16, 2017. Precision's counsel shall select among those and inform Marine's counsel, by no later than August 17, 2016. The deadline for discovery is extended for the limited purpose of conducting these depositions. Precision will bear the expense of the depositions up to $1, 500. Each party shall bear its own attorneys fees and travel costs.

         The Court further ORDERS Precision to pay Marine $1, 500 in attorneys' fees and costs for the missed depositions and for the bringing of this Motion, by no later than August 23, 2017. The Court DENIES Marine's requests to impose terminating sanctions and DENIES Marine's ...


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