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Michael Atwell v. Spx Cooling Technologies

June 6, 2011

MICHAEL ATWELL,
PLAINTIFF
v.
SPX COOLING TECHNOLOGIES, INC., DEFENDANT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion for costs, fees, and sanctions pursuant to Federal Rules of Civil Procedure 30(g) and 37(d) (Doc. 24), filed by defendant SPX Cooling Technologies, Inc. ("SPX") on March 8, 2011. For the reasons that follow, the court will grant in part, and deny in part the motion.

I. Background

On June 17, 2010, plaintiff Michael Atwell ("Atwell") instituted the present action against SPX alleging violations of the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. (Doc. 1). After SPX filed its answer to the complaint (see Doc. 7), the court issued a case management order setting March 1, 2011, as the factual discovery deadline and scheduling trial for August 2011. (Doc. 16).

SPX's present motion for costs, fees and sanctions arises out of the failure of Atwell and counsel for Atwell to cooperate in factual discovery. On December 29, 2010, SPX served its first request for production of documents on Atwell. (Doc. 25 ¶ 28; Doc. 29 ¶ 28). Atwell's responses were due January 28, 2011, but that date came and went with no reply from Atwell. On January 31, 2011, SPX initiated contact with counsel for Atwell to inquire about the responses. Despite an email and letter from an employee of Atwell's counsel stating that the responses were "forthcoming," SPX never received documents or any responses to its discovery request. (Doc. 25 ¶¶ 29-35; Doc. 29 ¶¶ 29-35).

Atwell and his counsel also failed to attend noticed depositions agreed upon by both parties. The facts pertinent to this sanctionable conduct are undisputed. On January 20, 2011, SPX filed a notice of deposition to depose plaintiff Atwell on Thursday, February 17, 2011, a mutually agreed upon date. (Doc. 17; Doc. 25 ¶ 4). Similarly, on February 2, 2011, after receiving agreement from both parties, Atwell's counsel noticed five depositions set to occur on February 15th and 16th. (Doc. 25 ¶ 6; Doc. 29 ¶ 6). In preparation for these depositions, counsel for SPX, located in Kansas City, Missouri, scheduled meetings for February 14, 2011 in York, Pennsylvania with some of the witnesses set to be deposed over the following two days. (Doc. 25 ¶ 7).

On February 13, 2011, counsel for SPX traveled from Kansas City, Missouri to York, Pennsylvania in order to attend the meetings and depositions scheduled for that week. However, on the morning of February 14, 2011, SPX received an email from Atwell's counsel canceling all depositions scheduled for the week because "Mr. Atwell is no longer available." (See Doc. 25, Ex. 3). Subsequent to the receipt of this email, counsel for SPX made numerous attempts through both email and telephone to contact counsel for Atwell. (Doc. 25 ¶¶ 11-15, 17-24). Indeed, between approximately 10 a.m. and 3 p.m. that day, SPX initiated seven telephone calls to attorneys for Atwell, virtually all of which went unanswered and unreturned. (See Doc. 25 ¶¶ 11, 13, 14, 15, 17, 18, 19; Doc. 29 ¶¶ 11, 13, 14, 15, 17, 18, 19). At 11:50 a.m., counsel for Atwell filed a motion for permission to withdraw as counsel citing irreconcilable differences. (Doc. 20).*fn1 Finally, that afternoon, Adam Lease, Esquire, one of Atwell's attorneys telephoned counsel for SPX. (Doc. 25 ¶ 22; Doc. 29 ¶ 22). During the call, SPX discussed its intention to move for relief under Federal Rules of Civil Procedure 30(g) and 37(d), and followed up the telephone call with email confirmation of the parties' conversation. (Doc. 25 ¶¶ 22-24; Doc. 29 ¶¶ 22-24).

On February 17, 2011, counsel for SPX requested through email correspondence that Atwell's counsel provide alternative dates for Atwell's deposition prior to the close of factual discovery on March 1, 2011. (Doc. 25 ¶ 25; Doc. 29 ¶ 25). Counsel for Atwell never responded. (Doc. 25 ¶ 26; Doc. 29 ¶ 26). Subsequently, on March 8, 2011, SPX filed the instant motion for costs, fees and sanctions against Atwell and his counsel. (Doc. 24). Counsel for Atwell responded on March 25, 2011, admitting virtually all of SPX's allegations, but asserting that the motion should be denied given counsel for Atwell's motion for permission to withdraw as counsel. (See Doc. 29). SPX filed a reply on April 11, 2011. (Doc. 33). The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Rules 26 through 37 of the Federal Rules of Civil Procedure govern the process of factual discovery for federal civil litigation. These discovery rules set forth the consequences for a party's failure to cooperate in the discovery process. See e.g., FED. R. CIV. P. 30(g), 37. Pursuant to Rule 30 governing depositions,

A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to:

(1) attend and proceed with the deposition; or

(2) serve a subpoena on a nonparty deponent, who consequently did not attend.

FED. R. CIV. P. 30(g). Additionally, when a party fails to attend its own deposition or cooperate in other discovery, the court may ...


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