The opinion of the court was delivered by: DONALD G. WILKERSON, Magistrate Judge
This matter is before the Court on the Affidavit of Matthew B. Lepppert
filed June 24, 2005 (Doc. 24) and the Motion for Reconsideration filed by
the defendant, Pro-Comm Communications, Inc., on June 24, 2005 (Doc. 25).
The motion for reconsideration is DENIED.
On June 1, 2005 a telephone conference was held regarding a
discovery dispute between the parties. The plaintiffs were
represented by Attorney Matt Leppert and the defendant was
represented by Attorney Kevin Stine. At the conference, the
defendant was ordered to turn over discovery, including answers
to interrogatories and documents, by June 10, 2005. The defendant
was further ordered to show cause on June 13, 2005, in person, if
the defendant failed to turn over discovery by the deadline.
On June 13, 2005, the show cause hearing was held and the
defendant failed to appear. At the hearing, the plaintiff
proffered that not all discovery had been turned over by the
defendant. Therefore, this Court ordered the defendant to pay
sanctions for the failure to comply with the order of this Court.
The sanctions imposed were the reasonable expenses of the plaintiff's counsel in attending the show cause hearing. The
defendant further was ordered to show cause, in writing, why it
failed to comply with this Court's orders. On June 24, 2005,
plaintiff's counsel submitted an affidavit indicating that they
incurred $156.00 in attorney fees for the show cause hearing.
In the defendant's motion for reconsideration (which is also a
response to the order to show cause), Attorney Stine, indicated
that he had faxed responsive documents to the plaintiff on June
9, 2005. Attorney Stine also stated that he had asked Attorney
Leppert to tell him if the show cause hearing would still be held
given his response to the plaintiff's discovery requests.
Specifically, he requested that Attorney Leppert telephone him
"as to whether we are having the hearing Monday morning."
Attorney Leppert has indicated that he did not receive a fax on
June 9, 2005. When he did receive the documents that were
included in the June 9, 2005 fax, on June 24, 2005, he noted that
the response still was incomplete. The plaintiff further has
indicated to the Court that the defendant agreed to provide the
remaining documents by June 30, 2005.
The responsbility was on the defendant, not plaintiff's
counsel, to determine whether the show cause hearing would occur
as scheduled. As there was no order of this Court cancelling the
show cause hearing, the defendant should have appeared. The
burden was not upon the plaintiff to inform the defendant of
whether he intended to go forward with the hearing. The
prerogative was with the Court as to whether the hearing would be
conducted as scheduled. Defense counsel, at the very least,
should have contacted chambers if there was any confusion. While
the Court will not impose further sanctions at this time, the
defendant shall pay to the plaintiffs the amount of $156.00
(payable to plaintiff's counsel) in sanctions for the failure to appear at the show cause hearing. The Court assumes that the
defendant now has complied with the discovery requests of the
plaintiff. If this dispute remains on-going, the parties may
contact chambers regarding the scheduling of an in person hearing
on the matter.
For the foregoing reasons, the Motion for Reconsideration filed
by the defendant, Pro-Comm Communications, Inc., on June 24, 2005
is DENIED (Doc. 25). The defendant shall pay $156.00 to
Attorney Leppert by August 1, 2005.
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