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Bernstein v. BMW of North America, LLC

United States District Court, N.D. California

July 16, 2019

KAREN BERNSTEIN, Plaintiff,
v.
BMW OF NORTH AMERICA, LLC, Defendant.

          ORDER RE: PLAINTIFF'S MOTION FOR SANCTIONS RE: DKT. NO. 54

          JAGUQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE

         Karen Bernstein alleges violations of the Song Beverly Warranty Act with respect to a vehicle manufactured and sold by Defendant BMW of North America. During the course of discovery the Court ordered Defendant to make percipient witness Nancy McDonald available for deposition. Over a month after the close of discovery, Plaintiff filed the now pending motion for sanctions based on Defendant's failure to produce Ms. McDonald for deposition. (Dkt. No. 54.) After considering the parties' briefs, the Court concludes that oral argument is unnecessary, see Civ. L.R. 7-1(b), VACATES the July 18, 2019 hearing, and GRANTS IN PART and DENIES IN PART Plaintiff's motion for sanctions.

         BACKGROUND

         On March 25, 2019, the Court ordered Defendant to produce percipient witness Nancy McDonald, who resides in New Jersey, for deposition. (Dkt. No. 51.[1]) Although Plaintiff had previously offered to depose her via video to reduce expense, Defendant declined. (Id.) Following the Court's March 25 Order, Plaintiff issued a deposition notice for Ms. McDonald for a deposition on Monday, April 29 at 10:00 am at U.S. Legal Support at 206 East 161st Street, Bronx, NY. (Dkt. N. 54-3.) On April 24-the Thursday before Ms. McDonald's Monday deposition-Defense counsel, Mr. Curtis, emailed Plaintiff's counsel, Mr. Barry, stating that Ms. McDonald would be produced at a court reporter's office in New Jersey at 25 East Spring Valley Avenue, Suite 320, Maywood, N.J., rather than the location in the deposition notice.[2] (Dkt. No. 59-1 at 6.) Mr. Barry responded by stating that the deposition would go forward in the Bronx as previously noticed. (Dkt. No. 59-1 at 8.) The following day, Mr. Barry was contacted by a Philip Semprevivo who indicated that he represented Defendant BMW and who again stated that Ms. McDonald would be produced in New Jersey at the previously specified location.[3] (Dtk. No. 59-3 at 6.) Mr. Semprevivo also attests that he called and sent additional emails to Mr. Barry although these emails are not attached to his declaration. (Dkt. No. 59-3 at ¶¶ 4-7.) In any event, there is no dispute that Mr. Barry did not respond to Mr. Semprevivo's emails or calls. On April 29 at 10:00 am, Mr. Barry appeared at the court reporter's office in the Bronx and Ms. Chou (an attorney with Mr. Semprevivo's office) appeared at the court reporter's office in New Jersey with Ms. McDonald. (Dkt. No. 54-3; Dkt. No. 59-2.) Five weeks later, Plaintiff filed the now pending motion for sanctions.

         DISCUSSION

         Federal Rule of Civil Procedure 37(b) authorizes sanctions against a party for failing to obey a discovery order. Fed.R.Civ.P. 37(b)(2)(A), (C). The district court has wide latitude in exercising its discretion to issue sanctions under Rule 37(c)(1). Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see also Liew v. Breen, 640 F.2d 1046, 1050 (9th Cir. 1981) (“Imposition of sanctions under Rule 37(b), and the selection of the particular sanction, are matters left to the discretion of the trial court.”). However, the district court's discretion to issue sanctions is subject to the following limitations: (1) the sanction must be just and (2) the sanction must specifically relate to the particular claim at issue in the discovery order. See Navellier v. Sletten, 262 F.3d 923, 947 (9th Cir. 2001). Further, where a party seeks payment of expenses for failure to comply with a court order, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C).

         Here, Plaintiff seeks evidentiary sanctions as well as monetary sanctions under Rule 37(b)(2) based on Defendant's failure to produce Ms. McDonald in response to the deposition notice and this Court's Order. The Court is troubled by the lack of professionalism apparent in both counsels' conduct in this matter. Plaintiff's counsel refused to acknowledge or communicate with Defendant's east coast counsel. Defendant's counsel refused to acknowledge that Plaintiff as the deposing party-and not Defendant-was entitled to select the place of the deposition. See Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 628 (C.D. Cal. 2005) (noting that generally, a party may notice deposition of another party to take place wherever it chooses). Defendant's insistence that the Court ordered the deposition to occur in New Jersey is wrong-the Court ordered Defendant to make her available for deposition, but did not order anything regarding the location of the deposition. (Dkt. No. 51.) If Defendant objected to the place of the deposition, it was not entitled to unilaterally change the location, and instead, was required to move for a protective order to prevent the deposition. See Fed. R. Civ. P. 37(d)(2) (“A failure [to appear for a deposition] is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”); see id. advisory committee's note (1970) (“If [a party] desires not to appear or not to respond, he must apply for a protective order.”). Given Defendant's failure to move for a protective order, its failure to produce Ms. McDonald for deposition was not substantially justified. The Court thus ORDERS Defendant to pay Plaintiff's reasonable expenses.

         However, the Court in its discretion declines to impose any of the evidentiary sanctions sought by Plaintiff. If Ms. McDonald's testimony was as critical as Plaintiff now insists, Plaintiff should have moved to compel her deposition within the time allowed to do so by the Local Rules rather than wait until a month after the close of fact discovery and seek evidentiary sanctions instead; the delay suggests an attempt to obtain a procedural advantage rather than necessary discovery.

         CONCLUSION

         Plaintiffs motion for sanctions is GRANTED IN PART and DENIED IN PART. (Dkt. No. 54.) Lewis Brisbois Bisaard & Smith LLP shall pay Plaintiffs reasonable attorney's fees and costs of $3, 800.[4] These sanctions must be paid within 30 days, by August 16, 2019. The motion for sanctions is DENIED in all other respects.

         IT IS SO ORDERED.

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Notes:

[1] Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the ...


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