Summary
finding that the "listing of race discrimination on the EEOC charge form was insufficient to place Defendant on notice that Plaintiff was making a race discrimination claim in this lawsuit"
Summary of this case from Bocage v. Boomtown Casino New OrleansOpinion
Case No. 2:05-cv-1002.
March 15, 2007
ORDER
Plaintiff Tabitha Mullins brings this action claiming that Defendant U.S. Bank unlawfully discriminated against her on the basis of her pregnancy. This matter is before the Court on Plaintiff's December 26, 2006 objections to the Magistrate Judge's December 18, 2006 Order (doc. 41).
I. Facts
Plaintiff claims that she was wrongfully terminated from Defendant U.S. Bank's employment on or about November 1, 2004. (Compl. ¶ 8). She contends that while at work on September 15, 2004, she began to have cramps and spotting associated with her 19 week pregnancy. (Compl. ¶¶ 10-11). Plaintiff's supervisor, Kenneth Kessler, required her to stay at work until 5:30 p.m despite being aware of her condition. (Compl. ¶¶ 11-21). After leaving work, Plaintiff was admitted to Mr. Carmel East, where she was hospitalized for four days due to arrested premature labor. (Compl. ¶ 24). She was placed on bed rest. (Compl. ¶ 24). Despite her time on bed rest, however, Plaintiff gave premature birth to a daughter on October 20, 2004, who died shortly after she was born. (Compl. ¶ 26).
The complaint alleges that on November 1, 2004, Kessler telephoned Plaintiff and then processed her termination papers that day. (Compl. ¶¶ 27-28). The complaint fails to state what was said during the conversation or why Plaintiff's termination papers were processed. However, the complaint does allege that Plaintiff attempted to notify Kessler that she intended to return to work, but that she was told by a U.S. Bank personnel director that she was terminated and would not be reinstated. (Compl. ¶¶ 29-30). Thereafter, Plaintiff relocated to Tennessee. (Compl. ¶ 31).
On December 18, 2006, Magistrate Judge Abel entered an Order that allowed Plaintiff to amend her complaint to add a claim of race discrimination. However, Plaintiff did not move for amendment until after her deposition and after the deadline for amendment had passed, even though she based her new claim on deposition evidence that was discovered before her own deposition. As such, Magistrate Judge Abel required that she submit to another deposition and to pay the costs associated with that deposition.
II. Discussion
Plaintiff first states that the Magistrate Judge's Order is clearly erroneous because it requires her to submit to another deposition and to pay the costs associated with that deposition. However, after a January 2, 2007 telephone conference call between Magistrate Judge Abel and the parties, Plaintiff made herself available for deposition. Further, during that telephone conversation, reflected in an Order on January 3, 2007, Magistrate Judge Abel stated that the "costs" Plaintiff must pay are defined in 28 U.S.C. § 1920 and do not include attorney's fees. Thus, the only remaining issue before the Court is whether the Magistrate Judge was clearly erroneous in awarding costs associated with the deposition as defined in 28 U.S.C. § 1920 to Defendant.
Plaintiff submits that the awarding of costs was clear error. First, she states that under the "American Rule," each party is responsible only for the cost of its own legal fees. Plaintiff also argues that although it was never mentioned in the text of the complaint, a race discrimination claim was incorporated into the complaint because she attached to it an EEOC charge form that was marked with "race" as well as "sex." She further argues that even if it was not incorporated into the complaint, the EEOC form put Defendant on notice of a potential race discrimination claim. In fact, Plaintiff states that Defendant's failure to ask her questions relating to race discrimination during her deposition was not due to the fact that Plaintiff had not yet included a race discrimination claim in her complaint, but because it was Defendant's
conscious defense strategy to not question Plaintiff regarding matters of race . . . in that way the defense could take the position that it did not know about the claim and try to exclude it at trial, or, at worst it could attempt to re-depose Plaintiff at her cost and impose an economic burden upon her to attempt to force her to settle for a small amount.
Pl.'s Reply Memo, p. 2.
Next, the Plaintiff asserts that all of the case law which Defendant cites for the proposition that the Magistrate Judge was within the law when he ordered Plaintiff to pay her re-deposition costs, is distinguishable from the matter at hand.
Defendant responds by stating that there are several well-known exceptions to the "American Rule" that parties to a lawsuit must bear their own expenses. In particular, Defendant states that a party may be forced to bear costs that were necessitated by their own action or inaction. Defendant contends that the Magistrate Judge's decision to award fees and costs in this case is well-supported by decisions of this and other Courts, on the basis of a plaintiff's action or inaction necessitating the re-deposition, including situations where the plaintiff did not amend until a late date, where the plaintiff did not show for scheduled depositions, and where plaintiffs substantially changed their past testimony. See Lamastus v. Bethany Home Ass'n of Lindsborg, Kan., 2006 WL 1360578 (D. Kan. May 18, 2006) (awarding costs of re-deposition where the plaintiff only amended close to the discovery deadline and after she had been deposed); Noble v. Cameron Mitchell Restaurants, LLC, 2005 WL 3113057 (S.D. Ohio Nov. 18, 2005) (awarding re-deposition costs after plaintiff twice failed to appear for scheduled depositions); U.S. ex rel. Burch v. Piqua Engineering, Inc., 152 F.R.D. 565, 567 (S.D. Ohio 1933) (awarding re-deposition costs when deponent made substantial changes to testimony).
III. Analysis
A District Court has the authority to reconsider any determination of non-dispositive motion by a Magistrate Judge, but only may overturn the Magistrate Judge's decision if it is "erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). This Court has previously held that "considerable deference to the determinations of magistrates" is required when conducting this type of review, and further states that "a finding is clearly erroneous only when the reviewing court is left with a definite and firm conviction that a mistake has been committed." In re Search Warrants Issued August 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995). When reviewing a determination made by a Magistrate Judge on a non-dispositive motion, this Court "should not ask whether the finding is the best or only conclusion that can be drawn from the evidence" or "substitute its own conclusion for that of the magistrate judge" but should merely "determine if there is any evidence to support the magistrate judge's finding and that the finding was reasonable." Baker v. Chevron USA, Inc., 2006 U.S. Dist. LEXIS 54545 at *6-7 (S.D. Ohio August 4, 2006).
Here, Plaintiff sought to amend her complaint after she had been deposed and after the deadline for amendment had passed. Her support for her theory of race discrimination was based on a non-party deposition which was taken before her own deposition. The Magistrate Judge decided that although he would allow her to amend her complaint under Rule 15's liberal amendment rule, he would not allow her to evade being deposed about her new claim. Further, as it was Plaintiff's decision to not amend until after the deposition, he ordered her to pay for the costs of the deposition, excluding attorney's fees.
This Court finds since the complaint did not allege race discrimination, that the listing of race discrimination on the EEOC charge form was insufficient to place Defendant on notice that Plaintiff was making a race discrimination claim in this lawsuit. Thus, the Magistrate Judge did not err in finding that Plaintiff's late amendment necessitated her re-deposition so that Defendant had a fair opportunity to question her about her newly pleaded race discrimination claim.
Plaintiff has failed to provide any support whatsoever for her theory that Defendant did not ask questions about race discrimination in a deliberate attempt to increase her costs and force her into settlement. Further, Plaintiff has cited no case law that supports her contention that the Magistrate Judge's decision to award Defendant the costs of the re-deposition constitutes clear error.
IV. Conclusion
For the reasons stated above, Plaintiff's December 26, 2006 objections to the Magistrate Judge's December 18, 2006 Order (doc. 41) are DENIED. Plaintiff is ORDERED to pay to Defendant court reporter costs and any videotaping costs associated with her redeposition within 30 days of the date of her re-deposition.