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Weinhofer v. Weis Markets, Inc.

United States District Court, E.D. Pennsylvania

December 29, 2016



          HENRY S. PERKIN, M.J.

         This matter is before the Court on Defendant, Weis Markets, Inc.'s Motion for Sanctions Directed to Plaintiffs. A Hearing on Defendant's motion for sanctions was held before the Court on December 13, 2016. Following the Hearing, a Supplemental Memorandum of Law in Support of Motion for Sanctions was filed by Defendant on December 16, 2016, and a Second Supplemental Memorandum of Law was filed by Defendant on December 20, 2016. Having considered the motion, supporting documentation, and oral argument presented by counsel for Defendant at the December 13, 2016 hearing, the Court is prepared to rule on this matter.


         Based upon the record, the relevant facts and procedural history are as follows:

         Plaintiffs Karla J. Weinhofer (“Weinhofer”) and Joseph S. Spagnola (“Spagnola”) initiated this matter by filing a Complaint against Defendant Weis Markets, Inc. (“Weis”) following an alleged slip-and-fall accident in a grocery store operated by Weis. See Dkt. 1. Plaintiffs claim Weis allowed a liquid to exist on the store's floor for an unreasonable amount of time and without a warning of the spill, and Weis' negligence in doing so caused Weinhofer to slip and fall. See id. Further, Weinhofer claims to have suffered a knee injury and several other bodily injuries, including a traumatic brain injury. See id. In addition to this claim against Weis, Spagnola also brings a claim for loss of consortium relating to his wife's injuries. See Id. Plaintiffs seek consequential, compensatory, and punitive damages against Defendant. See id.

         Defendant filed an Answer to the Complaint along with Affirmative Defenses on October 13, 2015. See Dkt. 5. Following a series of Rule 16 Conferences and status conferences, counsel for Plaintiffs filed a Motion to Withdraw as Attorney on January 20, 2016. See Dkt. 14. On January 29, 2016, the Motion was granted and the Order was mailed to Plaintiffs' last known mailing address. See Dkt. 16. On March 10, 2016, Plaintiffs were notified that they were expected to proceed with or without counsel. See Dkt. 19. The immediate action was referred to the undersigned on April 28, 2016. See Dkt. 29. Following a Rule 16 Conference held on June 1, 2016, [1] the parties were notified of the dates and deadlines for discovery, pretrial motions, motion for summary judgment, and several other case management deadlines related to the action. See Dkt. 33 and 34.

         On October 6, 2016, Defendant filed a Motion for Sanctions. See Dkt. 35. Plaintiffs were served with a copy of the Motion, memorandum, and proposed order.[2] See id. On November 22, 2015, the Court ordered that a Hearing for oral argument on Defendant's Motion for Sanctions would be held on December 13, 2016. See Dkt. 36. The Court's Order was entered and delivered to both parties by the Clerk's Office.[3] See id. Plaintiffs did not appear for the Hearing scheduled for December 13, 2016, and they did not respond to the Court's Order. See Dkt. 37. Counsel for Defendant appeared at the December 13 Hearing and provided oral argument with respect to the motion for sanctions. Following the Hearing, the Court ordered both parties to submit supplemental briefs and/or responses to Defendant's Motion for Sanctions. See Dkt. 38. The Court's Order was entered and delivered to both parties. See id. Defendant filed a Supplemental Memorandum in Support of Motion for Sanctions on December 16, 2016. See Dkt. 40. A Second Supplemental Memorandum was filed on December 20, 2016. See Dkt.

         Defendant's Motion for Sanctions contains information relevant to the steps Defendant took in an effort to advance discovery and move this action forward. See Dkt. No. 35. The Court finds the following uncontested averments relevant to its determination of this matter:

In December of 2015, former counsel for the Plaintiffs and Weis took steps to arrange for the depositions and independent medical examinations of the Plaintiffs, who are Texas residents, to occur in Philadelphia in January 2016.
This cooperative effort required numerous telephone calls, correspondence, numerous communications with experts and other representatives.
The parties agreed Plaintiffs would appear in Pennsylvania for their depositions and examinations. Thus, Weis accommodated Plaintiffs' scheduling needs and agreed to complete depositions and expert activity in a condensed schedule over several days.
In fact, Weis agreed to provide transportation to Plaintiffs to and from their hotel in Philadelphia, PA, and agreed to complete depositions on a Sunday at[Weis] counsel's Philadelphia, PA office.
Weis further agreed to provide transportation to Plaintiffs to and from IME's with neurology and neuropsychology experts.
On December 30, 2015, former counsel for the Plaintiffs confirmed Plaintiffs' availability on January 24, 2016 for depositions, and January 25 and 26, 2016 for independent medical examinations.
Thereafter, on January 6, 2016, Notices of Deposition were distributed for the confirmed date provided by [Plaintiffs'] counsel.
Plaintiffs independent medical examinations were properly Noticed and scheduled, and Weis submitted records to the experts at its own cost and expense.
On January 17, 2016, former counsel for the Plaintiffs advised that their representation had been terminated.
Thereafter, on January 19, 2016, Plaintiff Weinhofer wrote to Weis unilaterally canceling her depositions and examinations.
This unilateral action required the cancellation of the three IMEs that had been scheduled for the Plaintiff, along with depositions of the Plaintiffs themselves.
On March 15, 2016, counsel for Weis re-engaged in efforts to schedule the IMEs and depositions of the Plaintiffs.
In response, Plaintiff [Weinhofer] suggested that she was considering appearing for these activities between May 13, 2016 and May 18, 2016 in Pennsylvania.
Accordingly, on May 2, 2016, Weis scheduled IMEs with its experts to occur on May 13, 2016, May 16, 2016 and May 18, 2016.
On May 3, 2016, Plaintiff [Weinhofer] responded in a manner that appeared to confirm the proffered IME dates.
Notices of these activities were properly issued on May 4, 2016.
Despite numerous requests for the provision of Plaintiffs' travel schedule in order to enable Weis to take steps to schedule depositions, Plaintiff failed to respond.
Therefore, Weis issued Notices of Depositions for the Plaintiffs to occur on May 19, 2016, to coincide with Plaintiffs' expected travel itinerary.
Thereafter, on May 10, 2016, despite failing to provide dates for depositions upon Weis's request, Plaintiffs sent an email refusing to appear on May 19, 2016 for their depositions, without providing any ...

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