Opinion
05 Civ. 6459 (GEL) (RLE).
June 4, 2007
OPINION
I. INTRODUCTION
Pro se plaintiff, Sherry Bender ("Bender"), brings this motion for the imposition of sanctions against Brian Feldman, counsel for the Bivens defendants in the case, and Marcia Wald, a third party. Request for an Order to Show Good Cause and for Appropriate Sanctions Made ("Pl. Mot."), at 3. For the reasons set forth below, Bender's motion for sanctions is DENIED.
II. BACKGROUND
Wald is a patient representative at Beth Israel Hospital. Pl. Mot., Attachments. Bender claims that she has relevant information and subpoenaed Wald to appear for a deposition to take place on January 17, 2007. Id . at 1. On January 8, 2007, the Court held a conference in this case and the subject of Bender's proposed depositions was addressed. At the conference, the Court ordered Bender to submit a list of third parties she wished to depose, stating the relevancy of each, for the Court's consent. Transcript at 32-36, Attached as Exh. A to Declaration of Brian M. Feldman in Response to the Court's Order to Show Cause, Dated January 29, 2007, February 7, 2007 ("Feldman Decl."). On January 10, this was memorialized in a written order. Order, Jan. 10, 2007.According to Feldman's declaration, on January 11, Judy Block, an employee at Beth Israel Hospital, contacted Feldman by telephone, leaving a message and asking him to return the call. Feldman Decl. ¶ 12. Feldman states that he returned the call, and Block told him that she believed Bender's subpoena of Wald was improper. Id . ¶ 13. After asking if Block was an attorney, and learning that she was not, Feldman states that he advised her to speak with Beth Israel Hospital's legal counsel, and told her that he could not provide her with legal advice. Id . ¶ 14. Feldman states that he did provide Block with a copy of the Court's January 10, 2007 order, which he sent to her via facsimile. Id . ¶ 15. Feldman states that he did not tell either Block or Wald that Wald should not appear at the deposition. Id . ¶¶ 16-17.
On January 17, Bender appeared for the deposition of Wald, but neither Wald nor opposing counsel were present. Pl. Mot. at 2. Bender contacted Block regarding Wald's failure to appear, and claims that Block told her that Feldman had suggested that Wald did not have to appear. Id . On February 1, the Court issued an order to show cause why Wald and Feldman should not be sanctioned. On February 6, counsel for Beth Israel Hospital ("the hospital") responded to the order to show cause on behalf of Wald. Letter from Samuel J. Shapiro, February 6, 2007, at 1. According to the hospital, counsel advised Wald not to appear at the deposition because: 1) it reviewed the subpoena upon receipt and determined that it was invalid and 2) it interpreted the Court's January 10 order as barring the deposition of Wald. Id . at 2. The hospital also corroborates Feldman's account of the interaction that occurred between Block and Feldman. Id . at 1.
III. DISCUSSION
A. Brian Feldman, Counsel for Bivens Defendants
"The court has inherent power to sanction parties and their attorneys, a power born of the practical necessity that courts be able to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Revson v. Cinque Cinque, P.C. , 221 F.3d 71, 79 (2d Cir. 2000) ( citation and internal quotations omitted); see also Nat'l Hockey League v. Metro. Hockey Club, Inc. , 427 U.S. 639, 643 (1976). The Court may impose sanctions and assess attorney's fees if a party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y , 421 U.S. 240, 258-59 (1975). Under § 1927, "[a]ny attorney . . . 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. Bad faith is required for the imposition of sanctions. United States v. Int'l Brotherhood of Teamsters , 948 F.2d 1338, 1345 (2d Cir. 1991). Notice must be provided before sanctions are imposed. Schoenberg v. Shapolsky Publishers, Inc. , 971 F.2d 926, 936 (2d Cir. 1992).In order to impose sanctions, Bender must demonstrate that Feldman has acted in bad faith. In support of her motion, Bender asserts that Feldman has engaged in behavior that could conceivably constitute bad faith. However, Bender does not support her claims with extrinsic proof, and they are contradicted by Feldman's sworn statements. Without the required showing of bad faith, Bender's motion for sanctions is DENIED.
B. Marcia Wald
"The only authority in the Federal Rules of Civil Procedure ["FRCP"] for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum is Rule 45(f) [, now Rule 45(e)]." Application of Sumar , 123 F.R.D. 467, 473 (S.D.N.Y. 1988). According to Rule 45(e), "[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued." The Court has the power under this rule to impose contempt simply on the basis of failure to comply with a subpoena. Diamond v. Simon , 1994 WL 10622, at *1 (S.D.N.Y. Jan. 10, 1994); Daval Steel Prod. v. M/V Fakredine , 951 F.2d 1357, 1364 (2d Cir. 1991). However, in order to impose sanctions on the nonparty, violation of a court order is generally required in addition to the failure to comply with the subpoena. See, e.g., Paine Webber Inc. v. Acstar Ins. Co. , 211 F.R.D. 247, 249 (S.D.N.Y. 2002) (nonparty failed to comply first with subpoena and subsequent court order); Cruz v. Meachum , 159 F.R.D. 366, 368 (D. Conn. 1994) ("Before sanctions can be imposed under [FRCP] 45(e), there must be a court order compelling discovery."); Forum Ins. Co. v. Keller , 1992 WL 297580, at *2-3 (S.D.N.Y. Oct. 8, 1992).
Here, the Court's first involvement in the instant discovery dispute was the February 1 order to Wald to show cause why she should not be held in contempt of court for her failure to appear at the deposition. The hospital, on behalf of Wald, responded in a timely fashion, and deposition has since been taken. The Court does not condone the hospital and Wald's initial ignorance of the subpoena, which imposes a legal obligation not to be taken lightly. Their failure to notice this obligation, even in light of their belief that the subpoena was not proper, does not serve as the "adequate" excuse the rules require. FRCP 45(e). Rather than follow proper procedures when faced with what they believed to be an improper subpoena, they chose to simply ignore it. In addition, neither the hospital nor Wald made any attempt to seek clarification from the Court itself on the meaning of the Court's order, but instead relied on their own interpretation. There is no evidence that Wald, or the hospital's legal counsel on her behalf, is unsophisticated, but it does appear that they were, at best, careless, and, at worst, manipulative. However, because they responded to the Court's order, no sanctions will be imposed.
III. CONCLUSION
For the foregoing reasons, Bender's motion for sanctions is DENIED.
SO ORDERED.