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Francis Carling v. Kristan Peters

March 30, 2012

FRANCIS CARLING, PLAINTIFF,
v.
KRISTAN PETERS, DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

OPINION AND ORDER

I. Introduction

By notice of motion dated January 27, 2011 (Docket Item 106), plaintiff Francis Carling moves pursuant to Rule 11(b) and (c) of the Federal Rules of Civil Procedure, Rule 1.5 of the Local Rules of the Southern District of New York and the inherent powers of the Court to recover sanctions in an unspecified amount against defendant Kristan Peters. Peters opposes the motion, and, pursuant to 28 U.S.C. § 1927, seeks reimbursement of costs in the amount of $15,500.00 for having to respond to the motion.

For the reasons set forth below, Carling's motion is granted in part and denied in part, and Peters' request for reimbursement of costs is also denied.

II. Facts

Carling's motion "addresses defendant's misconduct in securing a last-minute modification of an [o]rder of the Court fixing the place of plaintiff's deposition, and other misconduct in connection with the parties' depositions conducted on December 16 and 17, 2010" (Plaintiff's Brief in Support of his Second Moton [sic] for Sanctions, dated Jan. 27, 2011 ("Pl.'s Brf."), (Docket Item 107), 1). Carling seeks the following sanctions:

(1) a finding that Peters engaged in professional misconduct and made false and misleading statements to the court, or, in the alternative, a hearing on these allegations, (2) reimbursement of costs for travel to Stamford, Connecticut for Carling's deposition, (3) a referral of this matter to the Committee on Grievances of the Southern District of New York and (4) other relief, including a monetary sanction payable to Carling (see Docket Item 106; Pl.'s Brf. at 1).

The conduct at issue in this motion is set forth below.*fn1

A. Location of Carling's Deposition

Carling was deposed on December 17, 2010 at Peters' Stamford, Connecticut office (see Pl.'s Brf. at 5-7). Initially, the Notice of Deposition fixed the location of the deposition as Peters' New York, New York office (Pl.'s Brf. at 2). I also issued an Order dated November 22, 2010, which directed, in part, that Carling appear for his deposition at Peters' New York office (Docket Item 68). On December 15, 2010, however, Peters wrote to the Court and requested that the location of the deposition be changed to her Stamford, Connecticut office (Pl.'s Brf. at 2). I granted Peters' application.

Carling contends that Peters' December 15, 2010 letter (as well as her representations to the Court the following day during a conference call) contained a misleading statement, as well as misrepresentations of fact concerning whether her New York office was an adequate location for Carling's deposition (Pl.'s Brf. at 2-3). Carling contends that the following statement by Peters was misleading: "The Court ordered that [Carling's] deposition take place in my New York office, in response to my request to take the deposition at the court house" (Pl.'s Brf. at 2). Carling contends that this statement was misleading because it implies that the Court selected Peters' New York office as the location for the deposition, when, in fact, Peters had chosen that location in the Notice of Deposition (Pl.'s Brf. at 2). With respect to the misrepresentations of fact, Carling states that "defendant deliberately misled the Court as to the facilities at her New York office [i.e., by stating that they were inadequate] . . . solely . . . . to inconvenience plaintiff by making him travel to Stamford on short notice" because Peters' New York office was, in fact, an adequate location to take Carling's deposition (Pl.'s Brf. at 10-11).

Peters responds that the Court was aware that the Notice of Deposition fixed the location of Carling's deposition as her New York office because Carling advised me of this fact. Peters also states that her lease with the building in which her New York office is located does not entitle her to the use of a conference room adequate for a deposition (Defendant's Opposition to Carling's Second Motions for Sanctions, undated ("Def.'s Opp."), (Docket Item 144), 14-16). Finally, Peters contends that it was not burdensome for Carling to travel to Stamford, Connecticut for his deposition (Def.'s Opp. at 16-17).

B. Peters' Deposition

Carling contends that Peters engaged in the following improper conduct during her deposition: (1) she was approximately forty-five minutes late, (2) she ate a banana during questioning, (3) she took a lunch break, but brought back a salad and ate it during questioning, (4) she ended the deposition during questioning, stating that "she had a right to leave because she had been deposed for seven hours" and that "the Court had specifically ordered plaintiff to complete the deposition in seven hours," (5) in calculating seven hours for the deposition, she subtracted only the lunch break, but not any other breaks taken throughout the day and (6) "without ...


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