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Vasconcellos v. City of New York

United States District Court, S.D. New York

June 1, 2015

ERICA VASCONCELLOS, as Administratrix of the Estate of Dashawn Vasconcellos, deceased and ERICA VASCONCELLOS, Individually, Plaintiff,
v.
THE CITY OF NEW YORK, et al., Defendants.

REPORT AND RECOMMENDATION

HENRY PITMAN, Magistrate Judge.

TO THE HONORABLE COLLEEN MCMAHON, United States District Judge,

I. Introduction

Defendants move to recover monetary sanctions against plaintiff's counsel, Michael Colihan, Esq., pursuant to the court's inherent power and 28 U.S.C. § 1927 (Notice of Motion, dated January 28, 2015 (Docket Item 84)).

For the reasons set forth below, I respectfully recommend that defendants' motion for sanctions be granted in the amount of $3, 003.75.[1]

II. Facts

Defendants' motion for sanctions arises out of a deposition that plaintiff noticed but that never took place.

On November 5, 2014, plaintiff's counsel provided defendants' counsel with a copy of a subpoena that plaintiff's counsel had served on Mitchie Derbie, an alleged nonparty witness to the shooting that gives rise to this action (Declaration of Richard Weingarten, Esq., in Support of Motion for Sanctions, dated January 28, 2015 (Docket Item 85) ("Weingarten Decl.") ¶ 6, Ex. A). After some negotiation to accommodate other professional commitments, counsel for both sides agreed that the deposition would proceed on December 3, 2014 at 11:00 a.m. at the offices of David Feldman Worldwide ("DFW"), a court reporting company (Weingarten Decl. ¶¶ 8-10, Ex. B).

Defendants' counsel attempted to confirm this date with plaintiff's counsel on November 20, 2014 by email (Weingarten Decl. ¶ 12, Ex. C). Plaintiff's counsel responded sarcastically and told defendants' counsel to "[a]sk [his] clients" whether the deposition would proceed (Weingarten Decl. ¶ 13, Ex. C).[2]

Counsel discussed the Derbie deposition at a discovery conference before me on November 25, 2014 (Weingarten Decl. ¶¶ 14-15). Plaintiff's counsel gave every indication at that conference that the deposition was still scheduled, and defendants' counsel adjourned a court conference in another matter in order to be available for the Derbie deposition on December 3, 2014 (Weingarten Decl. ¶ 16).

Defendants' counsel appeared at DFW's office on December 3, 2014 at 10:45 a.m. to attend the deposition and to crossexamine Mr. Derbie (Weingarten Decl. ¶ 18). Neither the witness nor plaintiff's counsel appeared, and defendants' counsel was advised by DFW's staff that plaintiff's counsel had not made any arrangements to conduct a deposition in this matter at DFW on any date (Weingarten Decl. ¶¶ 19-20).

When defendants' counsel subsequently inquired of plaintiff's counsel why the deposition had not taken place, plaintiff's counsel responded as follows:

I guess we are back to a Law Dept favorite - shared by its clients - pretending not to understand plain English. As I indicated several times - including in open court - I DO NOT HAVE A WORKING CONTACT NUMBER FOR MR. DERBY [sic], THERE WAS NO WAY TO CONFIRM HIS APPEARANCE THANKS TO YOUR CLIENTS[.] If you would like that number please provide a signed copy of the confidentiality agreement as you said you would.
It appears that your clients have managed to scare Mr. Derby off. In addition, when litigating with reasonable people, an email or phone call is exchanged a day or two to confirm the depositions. The fact that you chose to proceed to the reporter's office without that confirmation was your choice, sir.

Looks like we have something else to litigate here. (Weingarten Decl., Ex. E (emphasis in original)).

In response to defendants' counsel's motion, plaintiff's counsel "concede[s] that the better practice may have been to specifically confirm with the defendant's counsel that the matter was not going forward, " but that he "did not intentionally send Mr. Weingarten to a deposition knowing that no one would appear" (Declaration of Michael Colihan in Opposition to Motion for Sanctions, dated February 4, 2015 (Docket Item 88) ("Colihan Decl.") ¶ 2). Plaintiff's counsel states that, given his inability to reach the nonparty witness and what he considered defendants' counsel's failure to confirm, it was reasonable for him to assume that defendants' ...


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