Opinion
Civ. A. No. 98-2336, SECTION: "R" (2).
February 29, 2000.
ORDER AND REASONS
Before the Court is the motion of defendant, Autozoners, Inc., for sanctions pursuant to Federal Rule of Civil Procedure 37 and 28 U.S.C. § 1927. For the following reasons, defendant's motion is denied in part and granted in part.
I. BACKGROUND
Plaintiff filed this employment discrimination action against Autozoners, Inc. ["AutoZone"] on August 7, 1998. In his complaint, plaintiff asserted claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and pendant state law claims of breach of employment contract, breach of implied covenant of good faith and fair dealing, intentional and negligent infliction of emotional distress, and negligent misrepresentation. AutoZone sent a letter to plaintiff's counsel on February 5, 1999, requesting that plaintiff dismiss with prejudice his state law breach of contract, breach of covenant of good faith and fair dealing, and negligent misrepresentation claims. ( See Mem. Supp. Summ. J. Ex. 2.) In support, AutoZone cited cases indicating that Louisiana law either does not recognize or bars these claims. ( See id.) AutoZone asserted that if plaintiff did not dismiss those claims within five days, it would file a Rule 12(b) motion to dismiss. ( See id.) Plaintiff failed to respond to this correspondence or to dismiss the state claims. AutoZone did not file the threatened Rule 12(b) motion.
On February 18, 1999, AutoZone served on plaintiff interrogatories and requests for production. When plaintiff did not respond to this discovery or to defendant's repeated efforts to contact him, AutoZone filed a motion to compel. On August 18, 1999, Magistrate Judge Wilkinson granted the motion and ordered plaintiff to answer the interrogatories and requests for production at issue. Magistrate Wilkinson also ordered plaintiff to pay AutoZone $150.00 in attorney's fees under Federal Rule of Civil procedure 37(a)(4) for his failure to respond to discovery. Meanwhile, AutoZone had properly noticed plaintiff's deposition for August 5, 1999. ( See Mem. Supp. Summ. J. Ex. A, Hidalgo Proces Verbal.) Defendant did not appear at this deposition. ( See id.)
AutoZone thereafter moved for summary judgment, seeking to dismiss all of plaintiff's claims against it. In addition to dismissal on the merits, AutoZone sought dismissal and reasonable expenses, including attorney's fees, as a sanction under Rule 37 and 28 U.S.C. § 1927. AutoZone also suggested that the Court should sanction plaintiff under Rule 11 on its own initiative. ( See Mem. Supp. Summ. J., at 27 n. 1.) AutoZone argued that plaintiff's failure to dismiss patently meritless claims, failure to appear at his properly noticed deposition, and failure to respond to discovery served in February 1998, supported an award of sanctions. By Order dated September 23, 1999, this Court granted AutoZone's motion for summary judgment and dismissed this action with prejudice. The Court now addresses AutoZone's motion for sanctions. Plaintiff has not opposed this motion.
II. DISCUSSION
A. Failure to Appear at Deposition and Respond to Discovery
AutoZone argues that plaintiff's failure to appear at his properly noticed deposition, and failure to respond to discovery served in February 1999, supports an award of sanctions under Rule 37. The Court notes that Magistrate Judge Wilkinson has already sanctioned plaintiff $150.00 under Rule 37 for his failure to respond to discovery served in February 1999. Accordingly, no further sanction is appropriate on that grounds.
However, the Court finds that plaintiff's failure to appear at his properly noticed deposition warrants an additional award of attorney's fees under Rule 37. Rule 37(d) provides in pertinent part:
If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just. . . . In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Plaintiff failed to file an opposition to this motion. Although plaintiff's counsel indicated at the pretrial conference that he had difficulties contacting his client because Mr. Adams does not have a phone, this explanation does not "substantially justif[y]" plaintiff's failure to appear at his deposition. AutoZone initiated communications with plaintiff's counsel regarding an agreeable date for plaintiff's deposition at the beginning of June 1999. ( See Mem. Supp. Summ. J. Ex. A, Hidalgo Proces Verbal.) When plaintiff failed to respond, AutoZone sent a Notice of Deposition on July 9, 1999. ( See id.) Nothing in the record suggests that the deposition was not properly noticed or that plaintiff had a compelling reason not to attend.
B. Failure to Dismiss Meritless Claims and Failure to Prosecute
AutoZone argues that plaintiff's failure to dismiss meritless claims and failure to appear for his properly noticed deposition, to respond to discovery, and to timely file witness or exhibit lists, warrant sanctions under 28 U.S.C. § 1927. Section 1927 provides:
Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.28 U.S.C. § 1927 (West 1999). A court assesses section 1927 sanctions against the attorney, not his client. See Federal Deposit Ins. Corp. v. Calhoun, 34 F.3d 1291, 1296 (5th Cir. 1994). Because section 1927 sanctions are penal in nature, punishment under the statute is sparingly applied. See id. To justify an award, the Court must make an independent and detailed inquiry into whether the offending attorney's multiplication of the proceedings was both "unreasonable" and "vexatious." See id. at 1300-01 (5th Cir. 1994); F.D.I.C. v. Conner, 20 F.3d 1376, 1384 (5th Cir. 1994). The latter requirement is met by a showing that an attorney acted in bad faith, with improper motive, or with a reckless disregard of the duty owed to a court. See Baulch v. Johns, 70 F.3d 813, 817 (5th Cir. 1995) ( citing Conner, 20 F.3d at 1384; Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., 38 F.3d 1414, 1417 (5th Cir. 1994)). Sanctions may not be imposed, however, for mere negligence. See id.; Browning v. Kramer, 931 F.2d 340, 344 (5th Cir. 1991)
Aside from the meritless nature of plaintiff's claims, the Court finds that the evidence here does not support a finding that plaintiff's counsel acted with recklessness, bad faith, or improper motive. Sanctions against plaintiff's counsel under 28 U.S.C. § 1927 are therefore inappropriate. Additionally, and finding no improper purpose underlying plaintiff's complaint, the Court denies AutoZone's suggestion that it impose Rule 11 sanctions against plaintiff on its own initiative. See Fed.R.Civ. p. 11(b)(1), (c)(1)(B)
III. CONCLUSION
For the foregoing reasons, defendant's motion is denied in part and granted in part. Plaintiff is hereby ordered to pay to defendant $300.00 in attorney's fees under Rule 37(d) for his failure to attend his own deposition on August 5, 1999.
New Orleans, Louisiana, this 29th day of February, 2000.