United States District Court, E.D. Michigan, Southern Division
ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO
MAGISTRATE JUDGE'S ORDER AND ORDERING PLAINTIFF TO PAY
TRAVEL COSTS OF DEFENSE COUNSEL
F. COX UNITED STATES DISTRICT COURT JUDGE.
through counsel, Antonio Vinson, as Personal Representative
of the Estate of Michael P. Vinson, filed this action
asserting claims against multiple defendants.
matter was assigned to Magistrate Judge Stephanie Dawkins
Davis for all pretrial proceedings. (Docket Entry No. 92).
recently filed a discovery motion that sought, among other
things, to compel certain depositions. After the motion was
filed, Counsel for the Corizon Defendants agreed to make
Defendant Karen Rhodes available for deposition in Tennessee.
Thereafter, on February 28, 2017, Plaintiff's Counsel
noticed Karen Rhodes's deposition to be taken in
Nashville, Tennessee on March 22, 2017. (See Docket
Entry No. 146-1).
the course of ruling on the discovery disputes, Defense
Counsel made an oral motion before the magistrate judge to be
reimbursed for the cost of counsel's non-refundable
flight to Tennessee, after Plaintiff's Counsel
unilaterally cancelled the deposition of Rhodes just two days
before it was scheduled to begin, and without providing
Defense Counsel with any reason for doing so. (Docket Entry
bench order issued on March 27, 2017, Magistrate Judge Davis
ruled, in pertinent part, that “Plaintiff is HEREBY
ORDERED to pay defense counsel's travel costs (airfare
only) for the unilaterally cancelled deposition of Karen
Rhodes. To that end, defendant Corizon is ordered to submit a
bill of costs to the court with supporting documentation by
March 30, 2017. Plaintiff must submit any objection to the
validity of the claimed costs by April 6, 2017.”
(3/27/17 Bench Order).
Corizon filed the requested Bill of Costs on March 30, 2017.
(Docket Entry No. 146). In it, counsel advised that, due to
accommodations by the airline, Defense Counsel only had to
pay $352.40 as his out-of-pocket expense for the cancelled
airline ticket. (Id.).
did not file any objection to the Bill of Costs within the
time period provided for doing so. Thus, Plaintiff has waived
any objection to the validity of the claimed costs of the
cancelled airline ticket.
April 10, 2017, however, Plaintiff filed an Objection to the
magistrate judge's March 27, 2017 order. (Docket Entry
No. 148). Plaintiff objects to only the portion of the order
concerning the reimbursement of the airline ticket. Plaintiff
does not dispute that Plaintiff's Counsel cancelled the
out-of-state deposition, that had been noticed by
Plaintiff's Counsel on February 28, 2017, and did so
just two days before the scheduled deposition. Rather,
Plaintiff objects to the order on the ground that
Plaintiff's Counsel's conduct “was not a
violation of any of the acts enumerated under Rule 37.”
In sum, Plaintiff's Counsel believes that the magistrate
judge lacked the authority to issue the order in question.
Counsel is mistaken. As succinctly stated in Wise v.
Williams, 2013 WL 1309070 (M.D. Tenn. 2013):
Federal Rule of Civil Procedure 30(g) states that “[a]
party who, expecting a deposition to be taken, attends in
person or by an attorney may recover reasonable expenses for
attending, including attorney's fees, if the noticing
party failed to: (1) attend and proceed with the deposition;
or (2) serve a subpoena on a nonparty deponent, who
consequently did not attend.” Under this rule,
“[t]he decision of whether to impose discovery
sanctions ... is within the discretion of the Court.”
Keats v. United States, 121 F.R.D. 53, 53-54 (E.D.
Mich. 1988) (citing Miller Transamercian Press,
Inc., 709 F.2d 524, 532 (9th Cir. 1983). A party can
constructively fail to attend a deposition by providing late
notice of a cancellation. See Spalding & Evenflo
Cos., Inc. v. Graco Metal Prods., Inc., 1992 WL 109092,
at * 4 (N.D. Ohio Feb. 14, 1992) (ordering the defendant and
noticing party to pay costs incurred by the plaintiff, when
the defendant cancelled a deposition in another city after
the plaintiff's attorney had already traveled there).
Wise, supra, at * 2.
the magistrate judge acted within her authority and
discretion in ordering Plaintiff to reimburse Counsel for
Corizon the out-of-pocket expense of the airline ticket he
purchased to attend the deposition. Plaintiff constructively
failed to attend the deposition by unilaterally cancelling
that out-of-state deposition that Plaintiff had noticed, just
two days before it was to take place, and after Defense
Counsel had purchased an airline ticket to attend it.
Objections are OVERRULED. Plaintiff is HEREBY ORDERED to pay
defense counsel's travel costs in the amount of $352.40,
for the unilaterally cancelled deposition of ...