Karen L. Dyer v. Paxson Communications Corp. , 239 F. App'x 475 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 2, 2007
No. 06-13433 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-80200-CV-KLR
RICHARD KEITH ALAN, II,
Interested Party-Appellant,
versus
PAXSON COMMUNICATIONS CORPORATION,
Defendant-Appellee.
.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 2, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Richard Keith Alan, II appeals the district court’s imposition of sanctions
against him for his conduct as the attorney for Karen Dyer in her employment
discrimination action against Paxson Communications Corporation (“Paxson”).
For the reasons that follow, we affirm.
I. Background
Alan and Attorney Jacob Rose filed an employment discrimination action in
state court against Paxson on behalf of Dyer.1 Paxson then removed the case to
federal court. After Paxson filed its answer, the district court issued a scheduling
order with December 15, 2005 as the deadline for discovery.
Dyer’s deposition began at 10:00 AM on December 9, 2005 and lasted for
nearly four hours until shortly before 2:00 PM when Attorney Alan, without
explanation, requested a “break” and he and Dyer left the room. Alan returned
several minutes later and informed Paxson’s counsel, Michael McAuliffe, that he
had instructed Dyer to leave pursuant to an agreement between his and
McAuliffe’s legal assistants that four Paxson employees were to be deposed at 2:00
PM. McAuliffe responded that there was no agreement to end Dyer’s deposition in
the middle of questioning. McAuliffe then offered to proceed with the deposition
1
For reasons that are not relevant to the issues in this appeal, Rose withdrew from the
representation and his actions are not at issue here.
2
of a Paxson employee who was already present for Dyer’s deposition, but Alan
declined to depose this witness and left the premises.
On December 16, 2005, Paxson served a notice to continue Dyer’s
deposition on December 22, 2005 at McAuliffe’s office. Alan, in a written
response, refused to produce Dyer pursuant to that notice, stating that Dyer would
be available at Alan’s office with Alan’s designated court reporter. On December
20, 2005, Paxson filed a motion to compel Dyer’s appearance at the continued
deposition pursuant to the notice and for sanctions, fees, and costs against Alan
pursuant to, inter alia, Local Rule 30.1(D) of the Southern District of Florida and
Federal Rule of Civil Procedure 37(d). On December 22, 2005, Dyer failed to
appear at McAuliffe’s office at the date and time specified by the notice. Instead,
Dyer and Alan were waiting at Alan’s office, with Alan’s designated court
reporter, prepared to continue Dyer’s deposition.
In an order dated February 2, 2006, the district court granted Paxson’s
motion, ordering Alan to pay the costs incurred by Paxson “as a result of the
continuation of [Dyer’s] deposition” and ordering Dyer to appear for the
continuation of her deposition at McAuliffe’s office on a reasonable date of
Paxson’s choosing. Expressly relying on Local Rule 30.1(D), the court concluded
that there was no evidence that an agreement existed to limit Dyer’s deposition to
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four hours, Alan’s reason for terminating Dyer’s deposition was suspect and
perplexing, and Alan’s termination of the deposition prejudiced Paxson’s ability to
defend itself in the underlying litigation.
Thereafter, Paxson sent several notices to Alan indicating that it was owed
$3,554.75 for its fees based on 8.3 attorney hours spent preparing, researching, and
litigating the motion for sanctions (including evaluating Alan’s response and
preparing Paxson’s reply); 3.75 attorney hours seeking payment after the court
awarded sanctions; and 20 minutes in relation to Dyer and Alan’s non-appearance
at the continued deposition on December 22, 2006, all at an hourly rate of $295.
Paxson also asserted that it was owed costs in the amount of $1,065.10 for court
reporter fees and transcript preparation. Alan initially ignored these notices, but he
later sent a letter indicating that he would only pay for 1.5 hours of attorney time.
Paxson filed a motion to enforce the court’s order of fees and costs. Alan
responded by asserting that the court had yet to determine the amount he was to
pay; the amount should be limited only to expenses for the portion of the
deposition determined to be excessive; the amount should, at the very least, be
reduced by two-thirds; and the court should hold an evidentiary hearing to
determine the amount. Without holding an evidentiary hearing, the court granted
Paxon’s motion and ordered Alan to pay $3,554.75 in fees and $1,065.10 in costs.
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Dyer and Alan filed a notice of appeal and moved to stay the district court’s
order pending appeal. The court denied the stay, and Alan paid the sanctions in
full. Thereafter, Paxson moved for summary judgment in the underlying
employment discrimination action. The district court granted the motion and
entered final judgment in favor of Paxson.
II. Discussion
On appeal, Alan argues that the district court abused its discretion by
(1) imposing sanctions against him, as the decision to terminate Dyer’s deposition
was in direct response to a dispute between counsel regarding scheduling;
(2) awarding fees and costs that exceeded the scope and extent allowable under
Local Rule 30.1(D), which presumably served as the basis for the court’s
imposition of sanctions; and (3) awarding fees and costs without an evidentiary
hearing.2 We review a district court’s order imposing discovery sanctions for
abuse of discretion. Amlong & Amlong, P.A. v. Denny’s, Inc., 457 F.3d 1180,
1188 (11th Cir. 2006). “A district court abuses its discretion when it misconstrues
2
In its brief, Paxson argues that this court lacks jurisdiction to review the district court’s
order of sanctions because that decision is not a final order. But after the parties filed their
briefs, the district court entered final judgement on the merits for Paxson in the underlying
litigation. Accordingly, we have jurisdiction over this appeal. See In re BellSouth Corp., 334
F.3d 941, 955 n.6 (11th Cir. 2003) (citing Comuso v. Nat’l R.R. Passenger Corp., 267 F.3d 331,
339 (3rd Cir. 2001) (“[An] attorney must . . . wait to appeal the sanctions order after there has
been a final judgment on the merits.”)).
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its proper role, ignores or misunderstands the relevant evidence, and bases its
decision upon considerations having little factual support.” Serra Chevrolet, Inc. v.
Gen. Motors Corp., 446 F.3d 1137, 1147 (11th Cir. 2006) (citation omitted). A
district court also abuses its discretion when it applies the incorrect legal standard.
United States v. Jordan, 316 F.3d 1215, 1248-49 (11th Cir. 2003).
“[A]ll federal courts have the power, by statute, by rule, and by common
law, to impose sanctions against recalcitrant lawyers and parties litigant.” Carlucci
v. Piper Aircraft Corp., 775 F.2d 1440, 1446 (11th Cir. 1985). Sanctions for
discovery violations “are intended to prevent unfair prejudice to the litigants and
insure the integrity of the discovery process.” Gratton v. Great Am. Commc’ns,
178 F.3d 1373, 1374 (11th Cir. 1999).
Local Rule 30.1(D) states:
Whenever a judge or magistrate judge shall determine that any
party or counsel unreasonably has interrupted, delayed, or prolonged
any deposition, whether by excessive questioning, objecting, or other
conduct, the party or its counsel, or both, may be ordered to pay each
other party’s expenses, including without limitation, reasonably
necessary travel, lodging, reporter’s fees, attorneys’ fees, and
videotaping expenses, for that portion of the deposition determined to
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be excessive. In addition, that party or its counsel, or both, may be
required to pay all such costs and expenses for any additional
depositions or hearings made necessary by its misconduct.
S.D. Fla. Local Rule 30.1(D) (emphasis added).
And Rule 37(d) of the Federal Rules of Civil Procedure provides:
If a party . . . fails . . . to appear before the officer who is to take
the deposition, after being served with a proper notice, . . . the court in
which the action is pending on motion may make such orders in
regard to the failure as are just, and . . . may . . . require the party
failing to act or the attorney advising that party or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure
....
Fed. R. Civ. P. 37(d). In awarding attorney’s fees, the district court has broad
discretion in determining the amount. Aetna Ins. Co. v. Meeker, 953 F.2d 1328,
1335 (11th Cir. 1992). When the district court merely states the amount of fees
awarded, without more, such a conclusory statement ordinarily is insufficient to
allow meaningful appellate review of the amount awarded. Id. But meaningful
review is possible where the record below is “ample,” is referenced by the district
court, and allows this court to readily verify that the district court’s assessment of
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fees and costs was reasonable. Id.
Here, Alan first argues that the district court abused its discretion in
imposing sanctions because the decision to terminate Dyer’s deposition was in
direct response to a dispute between counsel regarding scheduling. He claims that
he terminated Dyer’s deposition pursuant to an agreement between his and
McAuliffe’s legal assistants to end Dyer’s deposition at 2:00 PM (even if
questioning was not completed) so that he could begin deposing four Paxson
employees. According to Alan, because it is customary for discovery scheduling to
be coordinated by legal assistants, reasonable people could disagree as to the
appropriateness of his conduct. We are unpersuaded.
In its sanctions order, the district court noted that even though one of the
Paxson employees who Alan claims he was to depose at 2:00 PM pursuant to the
alleged agreement was actually present at Dyer’s aborted deposition, after Alan
terminated Dyer’s deposition, he inexplicably rejected McAuliffe’s offer to depose
this employee. After concluding that there was no evidence of the alleged
agreement beyond Alan’s assertions, the court found that Alan’s rejection of
McAuliffe’s offer was “perplexing” and made the existence of such an agreement
“suspect.” The court also concluded that because Paxson could not be expected to
formulate an adequate defense without a complete deposition of Dyer, the plaintiff
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in the underlying case, Alan’s premature termination of Dyer’s deposition
prejudiced Paxson’s ability to defend itself. On this record, we cannot say that the
district court’s imposition of sanctions was an abuse of discretion.
Alan next argues that the district court’s authority to sanction him under
Local Rule 30.1(D) was limited to imposing costs and fees for that portion of the
deposition deemed to be excessive. He contends that the district court erred by
ordering him to reimburse Paxson’s fees for, inter alia, preparing and litigating its
motion for sanctions. We disagree.
As stated above, Local Rule 30.1(D) allows a district court to order an
attorney to pay the other party’s expenses “for that portion of the deposition
determined to be excessive” and “to pay all such costs and expenses for any
additional depositions or hearings made necessary by its misconduct. S.D. Fla.
Local Rule 30.1(D) (emphasis added). Thus, the plain reading of this rule is at
odds with Alan’s contention. But even if we read Local Rule 30.1(D) in the
manner Alan proposes, the district court was nonetheless authorized under Federal
Rule 37(d) to order Alan to pay the reasonable expenses Paxson incurred because
of Alan’s premature termination of Dyer’s deposition.3 See Fed. R. Civ. P. 37(d).
3
We may affirm the judgment below on any adequate ground, regardless of the grounds
addressed, adopted, or rejected by the district court. Cuddeback v. Fla. Bd. of Educ., 381 F.3d
1230, 1235-36 (11th Cir. 2004); Novak v. Irwin Yacht and Marine Corp., 986 F.2d 468, 470
(11th Cir. 1993); Turner v. Am. Fed’n of Teachers Local 1565, 138 F.3d 878, 880 n.1 (11th Cir.
9
Thus, the fees and costs Paxson incurred (1) preparing and litigating its motion for
sanctions, (2) seeking payment from Alan after the court awarded sanctions
(including researching, preparing, and litigating its motion to enforce the court’s
order), (3) in relation to Dyer and Alan’s non-appearance at the continued
deposition on December 22, 2006, and (4) for the court reporter and preparing
transcripts, all constituted “reasonable expenses” that were “caused by” Alan’s
premature termination of Dyer’s deposition. See id. Accordingly, we hold that the
amount of fees and costs that the district court ordered Alan to pay was not an
abuse of discretion.
Finally, Alan argues that the district court erred by determining the amount
of fees and costs he was required to pay without an evidentiary hearing when such
a hearing was requested, there were disputed issues of fact, and the court failed to
make explicit factual findings regarding the amount to be paid. We disagree.
Here, the numerous letters McAuliffe sent to Alan in an effort to secure
payment, Paxson’s motion to enforce the court’s order of sanctions, and Paxson’s
declaration in support of that motion provided a detailed itemization of the fees and
costs Paxson incurred as a result of Alan’s premature termination of Dyer’s
deposition. Moreover, Alan’s reply to Paxson’s motion to enforce the court’s
1998) (“We must affirm the judgment of the district court if the result is correct even if the
district court relied upon a wrong ground or gave a wrong reason.”).
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order of sanctions detailed his explanation of the amount he believed was owed
and his objections to the expenses that Paxson claimed. Thus, the written record
contained an adequate basis for the district court to resolve any factual disputes
regarding Paxson’s expenses and to determine the amount of fees and costs Alan
owed to Paxson as a result of his conduct. And although the district court’s orders
do not contain a detailed accounting of how the court determined the amount, it is
clear from the court’s order granting Paxson’s motion to enforce the court’s initial
sanctions order that the court determined the amount after reviewing Paxson’s
delineation of expenses in its motion to enforce the court’s order, Paxon’s
declarations in support of that motion, and Alan’s written objections in response.
Thus, the reasonableness of the district court’s assessment of fees and costs is
readily verifiable from the record, and an evidentiary hearing was not necessary.
See Meeker, 953 F.2d at 1335. We therefore conclude that the district court did
not abuse its discretion in this regard.
III. Conclusion
For the foregoing reasons, we AFFIRM.
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