United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY, District Judge.
Here we consider Plaintiffs' Motion for Sanctions (Doc. 32) filed with a supporting brief (Doc. 33) on December 30, 2014. Plaintiffs filed this motion after Defendants failed to appear for their depositions on December 3, 2014, at which their attendance was mandated by Court Order of November 21, 2014 (Doc. 31). Plaintiffs assert that Defendants have failed to offer or substantiate any valid reason for their failure to appear. (Doc. 32 ¶ 4.) Plaintiffs further assert that the appropriate sanction pursuant to Federal Rule of Civil Procedure 37 is entry of default judgment against both Defendants, leaving for the jury to determine the appropriate amount of compensatory damages and an appropriate award of punitive damages. (Doc. 32 at 2.) For the reasons discussed below, Plaintiffs' motion is granted.
This action arises from a motor vehicle collision which occurred on March 26, 2013. (Doc. 1 ¶¶ 5-9.) Plaintiff Linda Drozd was driving southbound on Keyser Avenue in Scranton, Pennsylvania, in a 2007 Nissan Sentra owned by her husband, Plaintiff Michael Drozd. (Doc. 1 ¶ 5.) Acting within the scope and course of his employment, Defendant Variale was driving northbound in a 2003 Toyota Sienna owned by Defendant Padron, d/b/a/Atlantic Motor Team, with the consent and knowledge of the owner. (Doc. 1 ¶¶ 6-8.) The words "high idle" and "no brake" were painted on the window on the driver's door. ( Id. ) "Suddenly and without warning" Defendant Variale turned his vehicle to his left and directly into the path of the Drozd vehicle. (Doc. 1 ¶ 9.) The resulting collision caused numerous serious injuries to Plaintiff Linda Drozd. (Doc. 1 ¶ 10.) Plaintiffs also allege that "the collision was caused by the negligent, reckless and wanton conduct of Defendant Variale, acting as the agent, servant and/or employee of Defendant Padron, d/b/a Atlantic Motor Team... [b]y operating the Toyota Sienna with knowledge that the vehicle was unfit for safe operation on a public highway." (Doc. 1 ¶ 12(j).)
The Complaint filed as a result of this accident contains three counts: Count I by Plaintiff Linda Drozd alleging negligent, reckless and wanton conduct on the part of all Defendants; Count II by Plaintiff Linda Drozd against Defendant Padron, d/b/a Atlantic Motor Team, alleging negligent, reckless and wanton conduct based inter alia on entrusting the vehicle to Defendant Variale, failing to properly investigate his driving abilities and driving record, and failing to require and instruct him to inspect the vehicle to ensure that it was safe for operation on public roadways; and Count III by Plaintiff Michael Drozd against all Defendants for loss of consortium. (Doc. 1.) On each count Plaintiffs seek compensatory and punitive damages. ( Id. )
On December 9, 2013, Defendants filed Motion of Defendants to Dismiss Claims of Recklessness, Wantonness, Willfulness and for Punitive Damages from Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 7.) By Order of February 11, 2014, the Court denied Defendants' motion, concluding that Defendants had failed to meet their burden of showing that no claim for punitive damages had been presented. (Doc. 19 at 8.) Specifically, the Court stated that "[t]he facts pled indicate that Plaintiffs have presented a plausible claim for punitive damages.... While discovery may show a lack of a causal connection between the "no brake" warning and the collision, such a determination would be premature at this stage of the proceedings. ( Id. )
On October 24, 2014, Plaintiffs filed Plaintiffs' Motion to Compel Depositions of Defendants Padron and Variale. (Doc. 26.) In their supporting brief, Plaintiffs stated the following:
By letter of August 21, 2014 sent to all defense counsel by email and first class mail, Plaintiffs' counsel scheduled the videotaped deposition of Defendant Thomas Variale for Monday, September 29, 2014 at 10:00 a.m. in the Kingston offices of Plaintiffs' counsel. A notice of videotaped deposition accompanied that letter. Defendant Variale did not appear for his deposition on the morning of September 29, 2104.
By letter of September 9, 2014 sent to all defense counsel by email and first class mail, Plaintiffs' counsel scheduled the videotaped deposition of Defendant Padron for Thursday, October 16, 2014 at 11:00 a.m. at the offices of Plaintiff's counsel in Kingston. A notice of videotaped deposition accompanied that letter. Defendant Padron did not appear for his deposition on the morning of October 16, 2014.
Defense counsel have advised Plaintiffs' counsel that they are unable to provide dates of rescheduling the depositions of Defendants Varilae and Padron and are unable to concur in this motion because Defendants Variale and Padron have not consistently responded to communications from defense counsel.
(Doc. 27 at 2.) Defendants did not file a brief in opposition to Plaintiffs' motion, and the Court granted the motion pursuant to Local Rule 7.6 of the Local Rules of Court of the Middle District of Pennsylvania on November 12, 2014. (Doc. 29.) With the November 12, 2014, Order, the Court directed Defendants to appear for depositions on November 24, 2014. ( Id. )
By correspondence dated November 19, 2014, Plaintiffs' counsel James Wetter, Esq., informed the Court that Defendant Variale's counsel, James DeCinti, Esq., indicated he had a scheduling conflict for November 24, 2014, and all counsel agreed to reschedule the depositions to December 3, 2014. (Doc. 30.) Thus, the Court issued an Order on November 21, 2013, amending its November 12, 2014, Order and directing Defendants to appear for depositions on December 3, 2014. (Doc. 31.)
Before Plaintiffs' counsel sent the November 19, 2014, letter to the Court, he had received an email from Defendant Padron's counsel, Stephanie Herperger, Esq., which stated the following:
Jim: December 3rd is fine with me and what I can confirm is that I will notify Mr. Padron of that date, that there is a Court order compelling him to appear and that he must appear. Obviously, I cannot force him to appear and if he doesn't appear, you will have to do what you deem necessary. I will do my absolute best to get him there though.
(Doc. 41-13 at 2.)
On the afternoon of December 2, 2014, at 2:37 p.m., Attorney DeCinti sent the following email to Plaintiffs' counsel:
I just got a call from my client, Thomas Variale. He just started a new medical clinic regiment [sic] and will thus not be able to attend his deposition in Kingston tomorrow, December 3rd. He tells me that he is available any other day in the next two months except December 11th and January 20th. If you want to circulate some dates, we can look to reschedule. Thanks for your understanding. At this point, I will still be at your offices tomorrow in the event Mr. Padron appears.
(Doc. 41-14 at 2.) At 2:50 p.m., Plaintiffs' counsel responded Defendant Variale is now represented by James DeCinti, Esq., and with the following: "Do you have any supporting documentation? JMW." (Doc. 41-14 at 3.) Attorney DeCinti immediately responded: "Supporting documentation for what, Jim?" (Doc. 41-14 at 4.) At 3:03 p.m., Plaintiffs' counsel replied: "Medical verifying his inability to attend his court-ordered dep for tomorrow. JMW." (Doc. 41-14 at 5.) Attorney DeCinti answered "I do not." (Doc. 41-14 at 6.)
Both Defendants failed to appear for the December 3, 2014, court-ordered depositions. (Doc. 41 at 10.) A record was made at the time and the transcript indicates that Attorneys Wetter, DeCinti, and Hersperger were present. (Doc. 41 at 10 (citing Doc. 33-3).) No explanation was offered for Mr. Padron's failure to appear. (Doc. 41 at 10.) Attorney DeCinti repeated the information set out in his December 2nd email, adding that Attorney Wetter did not want to provide additional deposition dates "without seeing some evidence or proof of Mr. Variale's medical problems and medical treatment. So I am going to endeavor to provide that to Mr. Wetter, and, hopefully, whatever I can get him will be satisfactory to him to allow us to reschedule the deposition of Mr. Variale." (Doc. 33-3 at 4.) After noting that it was the third attempt to take Defendants' depositions, Attorney Wetter added that "it is my plan to proceed with sanctions against the Defendants at this point.... [I]f I'm provided with some medical documentation supporting that [Defendant Variale] could not be here today, I would obviously reconsider as to him." (Doc. 41 at 10; Doc. 33-3 at 5.)
Defendant Variale has not provided Plaintiffs or the Court with any explanation of his medical reason or a medical excuse for not attending the December 3rd court-ordered deposition. (Doc. 41 at 10.)
As noted above, Plaintiff's filed the motion under consideration (Doc. 32) and supporting brief (Doc. 33) on December 30, 2014. Defendant Padron filed his opposition brief (Doc. 37) on January 12, 2015, and Defendant Variale filed his opposition brief (Doc. 38) on January 13, 2015. With the filing of Plaintiffs' reply brief (Doc. 41) on January 16, 2015, the motion was fully briefed and ripe for disposition.
Plaintiffs argue that entry of default judgment against both Defendants is an appropriate sanction pursuant to Federal Rule of Civil Procedure 37. (Doc. 33 at 6-8; Doc. 41 at 11-15.) Specifically, Plaintiffs request that "the Court rule that it will direct the jury to find that the Defendants were negligent and reckless in causing the collision, thereby leaving for the jury to determine [the monetary] value of the compensatory damages and an appropriate award of punitive damages." (Doc. 33 at 6-7.)
A. Legal Standard
Federal Rule of Civil Procedure 37(d) provides that a district court may impose sanctions on a party for failure to attend that person's deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). Sanctions may include "any of the orders listed in Rule 37(b)(2)(A)(i)-(vi)." Fed.R.Civ.P. 37(d)(3). The following sanctions are allowed in Rule 37(b)(2)(A)(i)-(vi):
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing ...