The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before me is Plaintiff's Motion for Sanctions due to Defendants' Cancellation of Depositions (Doc. 60-1). For the reasons stated below, this motion will be granted. The Court has jurisdiction pursuant to 15 U.S.C. § 1121 (original jurisdiction lies with district court in trademark infringement actions under the Lanham Act) and 28 U.S.C. §§ 1331*fn1 ("federal question jurisdiction"), 1332 ("diversity jurisdiction"), 1338*fn2 , and 1367 ("supplemental jurisdiction" over related state-law claims).
Plaintiff has alleged that Defendants have attempted to infringe upon their trademarks and have interfered with Plaintiff's contractual relationships for sale of their luxury watches and timepieces in North and Central America and the Carribean. More detailed facts may be drawn from the record.
With relevance to the present motion, Plaintiff alleges the following: Defendants Thomas, Dias, and Mazzocchi refused to enter this jurisdiction to be deposed due to concerns over their potential criminal liability herein. (Doc. 60-1 ¶ 4.) Defendants' counsel offered to make the witnesses available to testify via videoconference. Plaintiff's counsel objected to that proposal due to, inter alia, cross-examination difficulties with the videoconferencing method. (Doc. 60-1 ¶ 5.) Eventually, this Court ruled that the depositions via videoconference could occur. (Doc. 60-1 ¶ 8.) The depositions were to originate in the offices of Morgan Lewis & Bockius ("Morgan Lewis") in London, England and be transmitted to the Morgan Lewis office in Philadelphia, Pennsylvania. (Doc. 60-1 ¶ 10.) Plaintiff arranged to have its counsel from Geneva, Switzerland travel to London to attend and participate in the videoconference depositions of Defendants Thomas, Dias, and Mazzocchi. (Doc. 60-1 ¶ 11.) The evening before the depositions were to occur (at 7:00 a.m. EST the following morning due to the time differential), Plaintiff's counsel located in Scranton, Pennsylvania traveled to Philadelphia to attend the depositions. (Doc. 60-1 ¶ 12.) Defendant's counsel telephoned Plaintiff's counsel that evening and moved the depositions to 10:00 a.m. EST instead of 7:00 a.m. (Doc. 60-1 ¶ 14.) After Plaintiff's Swiss counsel arrived in London on the morning of the depositions, he called the London office of Morgan Lewis and was told that the depositions had been cancelled. This information was quickly relayed to Plaintiff's counsel from Scranton, who was in Philadelphia. Plaintiff's counsel then called Defendants' counsel who confirmed that the depositions had been cancelled due to the potential criminal liability of the individual defendants and their desire to retain private criminal counsel. (Doc. 60-1 ¶ 15.) Plaintiff's motion alleges that Defendants' counsel agreed to pay the attorneys' fees and expenses for their time wasted on this day. (Doc. 60-1 ¶ 17.)
Plaintiff's motion alleges that the following transpired a few days later: Following the injunction hearing of January 20, 2006, Defendants' counsel indicated for the first time that it intended to conduct the videotape depositions of two witnesses due to their travel issues. (Doc. 60-1 ¶ 18.) Despite the lack of timely notice, Plaintiff's counsel participated in these depositions on the following day. (Doc. 60-1 ¶ 19.) During those depositions and without prior notice, Defendant's counsel indicated that it intended to conduct the videotape deposition of Defendant Mazzocchi on the following day. (Doc. 60-1 ¶ 20.) Plaintiff likewise participated in this deposition, despite the lack of timely notice. (Doc. 60-1 ¶ 21.) On the day of the deposition, Defendants' counsel indicated that the deposition of Defendant Mazzocchi would not proceed due to Mazzocchi's concerns about possible criminal prosecution. (Doc. 60-1 ¶ 24.) Defendants' counsel again advised Plaintiff's counsel to submit a statement seeking reimbursement of attorneys' fees and expenses incurred in connection with the aborted deposition of Defendant Mazzocchi. (Doc. 60-1 ¶ 25.) By letter dated February 6, 2006, Plaintiff's counsel requested Defendants' counsel to issue a reimbursement payment of $13,783.01 relating to the foregoing two incidents. (Doc. 60-1 ¶ 26; Doc. 60-1 Ex. A.) In response, Defendants' counsel sent a letter requesting to recover costs incurred with respect to Plaintiff's withdrawal of their request for injunctive relief. (Doc. 60-1 ¶ 27; Doc. 60-1 Ex. B.)
On February 14, 2006, Plaintiff filed the present motion for sanctions due to Defendants' cancellations of depositions pursuant to Federal Rule of Civil Procedure 30(g). (Doc. 60-1.) Plaintiff's supporting brief was filed on March 1, 2006. (Doc. 63-1.) On March 15, 2006, Defendants filed a memorandum in opposition to Plaintiff's motion for sanctions. (Doc. 65-1.) Plaintiff filed a reply brief in support of the motion for sanctions on March 27, 2006. (Doc. 66.) This motion is fully briefed and ripe for disposition.
Failure to proceed with a properly noticed deposition is sanctionable under Federal Rule of Civil Procedure 30(g), which provides:
If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees.
In deciding a motion for sanctions, the court should consider all the circumstances, such as whether the failure was inadvertent or in bad faith, when setting proper sanctions. Barrett v. Brian Bemis Auto World, 230 F.R.D. 535, 537 (N.D. Ill. Sept. 13, 2005).
The Court's research reveals only a handful of district court cases that discussed the issuance of sanctions pursuant to Rule 30(g)(1) to the noticing party for a failure to attend and proceed with scheduled depositions. In First Interstate Bank of Nev., N.A. v. Nat'l Republic Bank of Chi., 1986 WL 6928 (N.D. Ill. May 23, 1986), the Court found that plaintiff's counsel's announced unavailability for a Friday deposition was not the cause of the cancellation of that day of depositions, because plaintiff's ill health intervened to force the depositions to be suspended. The deposition never occurred because the plaintiff soon passed away, and defendant's counsel sued for the costs of traveling to the scheduled depositions, on the grounds that even if plaintiff was in attendance, plaintiff's counsel would not have been. The ...