United States District Court, D. South Carolina, Aiken Division
ORDER AND OPINION
the court is Defendant HD Supply Facilities Maintenance,
Ltd.'s (“HD Supply”) Motion for Sanctions
(ECF No. 142) against Third-Party Defendant N3A Manufacturing
Inc. (hereinafter “Hotelure”) for Failure to
Attend Deposition. For the reasons stated below, the court
GRANTS IN PART AND DENIES IN PART HD
Supply's Motion for Sanctions (ECF No. 142).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
multiple occasions HD Supply has tried to depose
Hotelure's employees, including its CEO, Niall Alli
(“Alli”), but has been unable to do so, even
after giving them adequate notice. (See ECF No.
142-1 at 3-5, 7-8, 17, 28-29; ECF No. 142-2; ECF No. 142-4,
ECF No. 142-6.) At issue in this matter is Hotelure's
failure to attend its deposition, noticed pursuant to
December 21, 2017, HD Supply served Alli via e-mail, and on
December 26, 2017, Alli accepted service via e-mail. (ECF No.
142-1 at 17.) On December 27, 2017, the parties confirmed
that Alli would be deposed on February 9, 2018 in New York
City. (Id. at 17, 22; see also ECF No.
142-4 at 1.) On January 3, 2018, HD Supply served Hotelure at
its corporate headquarters with notice regarding the February
9, 2018 deposition. (ECF No. 142-5; see also ECF No.
February 8, 2018, Alli e-mailed HD Supply's Counsel,
stating that he would be unable to attend the February 9,
2018 deposition due to his flight being severely delayed and
eventually cancelled. (ECF No. 142-1 at 28-29.) HD
Supply's Counsel offered to move the deposition to
February 10, 2018, but Alli stated that he did not have
enough time to rebook a flight from China to make it by then.
(Id. at 26-27.) Counsel for HD Supply and Aiken
Hospitality convened the deposition on February 9, 2018, and
Alli was not present. (ECF No. 142-6.)
April 5, 2018, HD Supply moved for sanctions against Hotelure
for Hotelure's failure to attend its deposition, noticed
pursuant to Rule 30(b)(6). (ECF No. 142.) On April 9, 2018,
Plaintiff Aiken Hospitality Group, LLC (“Aiken
Hospitality”) responded. (ECF No. 146.) Hotelure did
not respond to HD Supply's Motion.
court has jurisdiction over this case pursuant to 28 U.S.C.
§ 1332, as Aiken Hospitality and HD Supply are diverse
parties, and the amount in controversy is greater than $ 75,
000, exclusive of interest and costs. (ECF No. 1 at 1-2
¶¶ 2, 4.) Moreover, this court also has
jurisdiction over HD Supply's Third-Party action against
Hotelure pursuant to 28 U.S.C. § 1332 for the same
reasons. (ECF No. 1 at 1-2 ¶ 2; ECF No. 21 at 7-8
37(d)(1)(A)(i) provides that the court may “. . . on
motion, order sanctions if: (i) a party or a party's
officer, director, or managing agent-or a person designated
under Rule 30(b)(6) or 31(a)(4)-fails, after being served
with proper notice, to appear for that person's
deposition.” Sanctions for a party's failure to
appear for its deposition “. . . may include any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in
addition to these sanctions, the court must require the party
failing to act, the attorney advising that party, or both to
pay the reasonable expenses, including attorney's fees,
caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(d)(3).
Supply moves the court for the following relief; (1)
imposition of a monetary sanction against Hotelure, (2)
strike Hotelure's responsive pleadings and render a
default judgment against it, (3) treat Alli's actions as
contempt of court for failure to appear and issue a bench
warrant for his arrest, and (4) stay the proceedings until
Hotelure provides a designee for the duly noticed deposition.
(ECF No. 142 at 5-6.)
Hospitality does not object to the imposition of sanctions
against Hotelure, and does not take a position as to whether
Alli should be arrested. (ECF No. 146 at 3.) However, Aiken
Hospitality opposes the entry of a default judgment against
Hotelure and also opposes a stay of the proceedings until
Hotelure presents a designee. (Id. at 3-4.)
Hotelure's Rule 30(b)(6) witness, therefore, his answers
would be binding on Hotelure. The parties tried to schedule a
Rule 30(b)(6) deposition for different times during late
2017, and ultimately, the parties were able to settle on the
date of February 9, 2018. (ECF No. 142-1 at 17.) HD Supply
gave Alli notice of ...