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Marjorie Fudali v. Pivotal Corporation

January 14, 2011

MARJORIE FUDALI, PLAINTIFF,
v.
PIVOTAL CORPORATION, DEFENDANT.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

I. INTRODUCTION

On December 2, 2010, I ordered the defendant, Pivotal Corporation ("Pivotal") to "comply with my order of October 12, 2010, granting plaintiff's motion to compel, by December 14, 2010, including making Derrick Anderson available for deposition." Order of December 2, 2010 [#239].

On December 2, 2010, plaintiff's counsel, Neil L. Henrichsen ("Henrichsen") e-mailed defendant's counsel, Kevin B. Bedell ("Bedell"), and asked him to provide dates for the deposition of Derrick Anderson ("Anderson") as well as three other persons. Plaintiff's Opposition to Defendant's Motion for Extension of Time for Defendant to Produce Discovery ("Opp. Time") [#247], Exhibit A. On December 3. 2010, Henrichsen served a re-notice of Anderson's deposition, setting the deposition for Thursday, December 9, 2010, at 9:00 a.m. at Greenberg Traurig, LLP's Atlanta offices. Id. On December 7, 2010, however, Bedell indicated that he would not be traveling to Atlanta for the deposition, and told Herichsen by e-mail, "[D]on't expect anyone to appear then." Id. at Exhibit B. In an e-mail dated December 10, 2010, Bedell stated that Stephen Dexter ("Dexter"), the president of Pivotal since summer 2010, who was scheduled to be deposed on December 16, 2010, would not be a 30(b)(6) deponent; Bedell further asked Henrichsen to indicate why he believed Dexter had relevant knowledge. Id. at Exhibit C. In another e-mail sent December 10, Bedell stated that he could not guarantee he would be available for the deposition by 1:00 p.m. on December 14, and that he was certainly not available on December 13. Id. On Saturday, December 11, 2010, as a final offer, Henrichsen offered to take the depositions of Anderson, Dexter, and the 30(b)(6) deponents on December 16, 2010, in Atlanta. Id.

On December 14, 2010, however, Bedell filed defendant Pivotal's Motion for Extension of Time for Defendant to Produce Discovery [#243]. On December 15, 2010, Henrichsen e-mailed Bedell, indicating that he was heading to Atlanta that evening for the depositions of Dexter and the Pivotal 30(b)(6) deponents, which were noticed on December 6 and 7, 2010, and that, unless he heard otherwise, he expected the witnesses to be presented per the notices. Opp. Time at Exhibit D. Bedell responded, "We already filed a motion on one of these, so you obviously know the answer on that one." Id. Henrichsen's colleague e-mailed Bedell on the afternoon of December 15, advising him that Henrichsen was already on his way to Atlanta to take the depositions on December 16. Id. Bedell responded, indicating that the depositions would not be taken because of the motion he had filed on December 14. Id.

II. MOTIONS FOR EXTENSIONS OF TIME

A. The Motions for Extension of Time Must Be Stricken

Unfortunately for Pivotal, the motion it filed on the 14th was not timely filed. My Order required full compliance, including making Anderson available for a depositon, "by December 14, 2010." Order of December 2, 2010. Federal Rule of Civil Procedure 6(b) requires that a motion seeking an extension of time within which to comply with an obligation, such as a court order, be "made before the original time." Fed. R. Civ. P. 6(b)(1)(A). The CM/ECF system captures the precise time when a motion is filed. Defendant Pivotal's Motion for Extension of Time for Defendant to Produce Discovery [#243] was filed at 8:29 p.m. on December 14, 2010. While in a world of electronic filing, the meaning of the word "before" in Rule 6(b) may raise some nice questions, every rational person would have to agree that a filing made after 8:00 p.m. on the day the obligation is due cannot possibly be said to have been filed "before" that obligation was due.*fn1 Indeed, it would have been impossible for me to have acted on the motion on December 14, 2010, since I had already left for the day when it was filed.*fn2

Since the motion was not timely filed and the deadline for compliance had expired, a motion for extension of time should have been accompanied by a motion for leave to file it that established excusable neglect for failing to file it on time. Fed. R. Civ. P. 6(b)(1)(B). See Smith v. District of Columbia, 430 F.3d 450, 456-57 (D.C. Cir. 2008). No such motion having been filed, the motions that were filed will be stricken, meaning that Pivotal failed to comply with my Order.

B. Expenses Will Be Awarded

Because the Court did not and could not have acted before the December 14 deadline, Pivotal had no justification for its failure to appear for the depositions scheduled for December 16. Since it did not appear, and had not moved for a protective order seeking to postpone those depositions, under Rule 37(d)(3) of the Federal Rules of Civil Procedure, Pivotal will have to pay all expenses Henrichsen incurred and reasonable attorney's fees for his having to go to Atlanta for the depositions that never took place. Fed. R. Civ. P. 37(d)(3).

III. MOTION FOR CONTEMPT AND SANCTIONS

In light of Pivotal's failure to comply with my Order of December 2, 2010 by the December 14 deadline, plaintiff filed Plaintiff's Motion for Contempt and Sanctions, Incorporated Memorandum of Points and Authorities in Support Thereof and Request for Hearing Pursuant to LcvR 78.1 ("Mot. Contempt") [#244]. As I noted in my Memorandum Opinion of the same day, "civil sanctions must not be punitive--they must be calibrated to coerce compliance or compensate a complainant for losses sustained." Memorandum Opinion ("Memo. Op.") [#240] at 4 (citing In re Fannie Mae Sec. Litig., 552 F.3d 814, 823 (D.C.Cir. 2009)). At the time the present motion was filed--December 15, 2010--Pivotal had failed to comply with my Order, and there seemed a need for coercion. However, it is my understanding that the depositions of Anderson, Dexter, and the 30(b)(6) deponents have since taken place. Opposition to Motion for Contempt and Sanctions ("Opp. Contempt") [#259] at 1. It is my further understanding that defendant Pivotal provided responses to plaintiff's second set of interrogatories and requests for production on December 22, 2010. Id.

Plaintiff clearly cannot be seeking to compel compliance on the depositions at issue in this motion. The remedy for Pivotal's failure to appear at the noticed deposition falls under Federal Rule of Civil Procedure 37(d)(3), as discussed above, and requires Pivotal to pay the expenses plaintiff incurred ...


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