Champlin v. Manpower Inc.

MOTION to Compel Appearance and Sanctions

S.D. Tex.March 12, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION JEFFREY S. CHAMPLIN, § Plaintiff, § § vs. § CIVIL ACTION NO. 4:16-cv-00421 § JURY DEMANDED EXPERIS US, INC., and § QUANTLAB FINANCIAL, LLC, § Defendants. § PLAINTIFF’S MOTION TO COMPEL APPEARANCE AND FOR SANCTIONS TO THE HONORABLE ANDREW S. HANEN: Plaintiff, Jeffrey S. Champlin, files this his Plaintiff’s Motion to Compel Appearance and for Sanctions and would respectfully show the following: I. INTRODUCTION This is an age-discrimination case wherein Plaintiff, Jeffrey S. Champlin (“Champlin” or “Plaintiff”) alleges Defendants, Experis US, Inc. and Quantlab Financial, LLC,1 discriminated against him because of his age by emailing Champlin, and other potential applicants, a job posting on behalf of Quantlab that discouraged him and older potential applicants from applying for employment. Non-party Joe Dionne (“Dionne”) sent the discriminatory email to potential applicants. He was properly served with a subpoena three times to testify at a deposition in this case and has failed to appear each time. Thus, Champlin seeks an order from this court compelling Dionne to appear to be held in contempt of court, punishable by monetary sanctions, if fails to appear again. Champlin also seeks a contempt finding, along with attorney’s fees and costs he has incurred due to Dionne’s failure to comply with the deposition subpoenas. 1 Defendants, Experis US, Inc. (herein “Experis”) and Quantlab Financial, LLC (herein “Quantlab”), shall collectively be referred to as “Defendants.” Case 4:16-cv-00421 Document 80 Filed on 03/12/19 in TXSD Page 1 of 5 -2- II. FACTUAL SUMMARY When Experis failed to fully respond to Champlin’s written discovery with the identity of those persons who received a copy of the discriminatory email and those who responded, Champlin subpoenaed the Experis representative who sent the email—Dionne. Champlin noticed and subpoenaed Dionne to appear for his deposition on December 28, 2018, January 3, 2019, and January 10, 2019.2 Dionne was properly served with the subpoenas but did not appear.3 Champlin obtained a certificate of non-appearance on January 3, 2019, and January 10, 2019,4 when Dionne failed to appear although having been duly served with subpoena on both occasions. Dionne never filed a Motion to Quash Subpoena. Dionne had a different excuse each time he did not appear. As a result of Dionne’s failure to appear, Champlin incurred process server and court reporter fees in the amount of $1,983.37.5 Champlin also seeks $1,500 in attorneys’ fees. Which is only part of the attorneys’ fees he incurred in trying to secure Dionne’s appearance for a deposition. III. ARGUMENTS AND AUTHORITIES A. The Court should Compel Dionne to Appear for an Oral Deposition A party may take the oral deposition of any person or party. See FED. R. CIV. P. 30(a)(1). If the deponent is not a party and does not consent to attend, then his attendance can be compelled by subpoena issued under Federal Rules of Civil Procedure 45. Trans Pac. Ins. Co. v. Trans-Pac. Inc. Co., 136 F.R.D. 385, 395 (E.D. Pa. 1991). 2 See Exhibits 1, 2, and 3. 3 See Documents 55, 56, and 60. 4 See Exhibit 4 and Exhibit 5. 5 See Exhibit 6 and Exhibit 7. Case 4:16-cv-00421 Document 80 Filed on 03/12/19 in TXSD Page 2 of 5 -3- Dionne’s deposition was properly noticed pursuant to Federal Rule of Civil Procedure 30(b)(1). Dionne failed to appear for his oral deposition multiple times and to date has failed to comply with the properly executed subpoenas. B. The Court Should Award Plaintiff his Attorneys’ Fees and Costs Incurred Plaintiff seeks an award against Dionne for attorneys’ fees in connection with preparing this motion and efforts expended to compel Dionne to comply with the previous subpoenas. The court may hold a person in contempt who, having been served, fails without adequate excuse to obey the subpoena. See FED. R. CIV. P. 45(g). A person who disobeys a subpoena may be subject to contempt sanctions. Id. Civil contempt sanctions generally include fines. See PaineWebber Inc. v. Acstar Ins. Co., 211 F.R.D. 247, 249 (S.D.N.Y. 2002) (fine imposed for failure to comply with deposition and document subpoena). A court is not required to order compliance first before imposing the sanction of contempt for failure to obey a subpoena without adequate excuse. See In re Rosenthal, No. CIV.A. H-04-186, 2008 WL 983702, at *8 (S.D. Tex. Mar. 28, 2008); U.S. S.E.C. v. Hyatt, 621 F.3d 687, 693 (7th Cir. 2010). The Court should order Dionne to appear for an oral deposition. Dionne’s testimony is necessary because he was the individual who sent the discriminatory email that is the subject of this suit and therefore has relevant knowledge of the facts pertaining to such. Further, Champlin seeks to depose Dionne on topics that are directly related to his claims in the pending suit. Case 4:16-cv-00421 Document 80 Filed on 03/12/19 in TXSD Page 3 of 5 -4- IV. RELIEF REQUESTED Champlin request this Court issue an order compelling Dionne to appear for his oral deposition at the earliest date possible prior to April 15, 2019. Champlin further requests this court find Dionne in contempt for his failure to appear for his previous oral depositions scheduled on December 28, 2018, January 3, 2019, and January 10, 2019, and order Dionne to pay $1,983.37 in costs and $1,500 in attorneys’ fees6 and/or sanctions, within thirty (30) days from the date of the Court’s order. In the alternative, Champlin requests the Court issue an order for Dionne to appear and show cause why he should not be held in contempt and ordered to pay costs and attorneys’ fees. Champlin requests any other relief to which he may be justly entitled. Respectfully submitted, JACKSON WALKER LLP /S/ G. SCOTT FIDDLER ______________________________ G. SCOTT FIDDLER Attorney-in-Charge Texas State Bar No. 06957750 Federal ID No. 12508 sfiddler@jw.com JESSICA R. LARA Of Counsel Texas State Bar No. 24081582 Federal ID No. 3306796 jlara@jw.com 1401 McKinney Street, Suite 1900 Houston, Texas 77010 Tel: 713-752-4200 Fax: 713-754-6717 ATTORNEYS FOR PLAINTIFF 6 See Exhibit 8, Fiddler Affidavit, ¶ 6. Champlin is paying his attorney at a rate of $375 per hour, and $1,500 is less than what Champlin has incurred in preparing and trying to secure Dionne’s deposition, through phone calls, subpoenas, deposition notices, and this motion. Case 4:16-cv-00421 Document 80 Filed on 03/12/19 in TXSD Page 4 of 5 -5- CERTIFICATE OF CONFERENCE I called Joe Dionne after he failed to appear for his deposition; I left a message and never heard back. I attempted to confer with Joe Dionne by telephone on March 8, 2019, and March 12, 2019, at his last known telephone number, but the phone number was disconnected. I emailed him on March 12, 2018, at his last known email address but as of the filing of this motion have not heard back from him. It is unknown whether he is opposed to this motion. /S/ G. SCOTT FIDDLER ____________________________________ G. SCOTT FIDDLER CERTIFICATE OF SERVICE I hereby certify that service of a true and correct copy of the foregoing document and proposed Order will be accomplished through the notice of electronic filing in accordance with the Federal Rules of Civil Procedure on this the 12th day of March 2019, to the following: Yvette V. Gatling, Esq. Kevin Little, Esq. ygatling@littler.com klittle@littler.com Littler Mendelson, P.C. Littler Mendelson, P.C. 1650 Tysons Blvd., Suite 700 1301 McKinney, Suite 1900 Tysons Corner, Virginia 22102 Houston, Texas 77010 Mark Jodon, Esq. mjodon@littler.com Travis J. Odom, Esq. todom@littler.com Littler Mendelson, P.C. 1301 McKinney, Suite 1900 Houston, Texas 77010 I hereby certify that service of a true and correct copy of the foregoing document and proposed Order will be accomplished via email, certified mail, return receipt requested, and first class mail, in accordance with the Federal Rules of Civil Procedure on this the 12th day of March 2019, to the following: Mr. Joe Dionne jdsoxs87@yahoo.com 20602 Crescent Arbor Lane Spring, Texas 77379 /S/ G. SCOTT FIDDLER _______________________________ G. SCOTT FIDDLER Case 4:16-cv-00421 Document 80 Filed on 03/12/19 in TXSD Page 5 of 5