United States District Court, W.D. Arkansas, Fort Smith Division
CATHERINE WHITE, individually and on behalf of all others similarly situated, et al. PLAINTIFFS
THE GREGORY KISTLER TREATMENT CENTER, INC. DEFENDANT
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Defendant's motion (Doc. 38) for sanctions
and brief in support (Doc. 39), Plaintiffs' response
(Doc. 40), and Defendant's reply (Doc. 43), filed with
leave of Court. Defendant moves for sanctions under Federal
Rule of Civil Procedure 37(d), asking that the claims of
opt-in Plaintiffs Judy Kisling and Kim Barnum be dismissed
because those Plaintiffs twice failed to appear for properly
noticed depositions. The motion will be granted.
January 30, 2018, Defendant sent notice to Plaintiffs that it
intended to depose Barnum on February 23, 2018.
Plaintiffs' counsel, Steve Rauls, made Barnum aware of
the deposition, but Barnum did not appear. Nor did she
provide an explanation for her failure to appear.
March 14, 2018, Defendant sent notice to Plaintiffs that it
intended to depose Barnum and Kisling on March 26, 2018.
Kisling failed to appear, and Barnum not only failed to
appear, but affirmatively communicated to her attorneys'
office that she would not appear. Neither opt-in Plaintiff
provided an explanation for her failure to appear.
April 12, 2018, Defendant sent notice to Plaintiffs that it
intended to depose Kisling on May 2, 2018. Again, Kisling did
not appear. This time, Kisling's attorney also failed to
appear, and instead sent an email to Defendant that he was
not attending because he knew Kisling would not attend.
37(d)(1)(A) allows the Court to order sanctions against a
party who fails to appear for her properly noticed
deposition. In addition to the nonexhaustive list of
sanctions found in Rule 37(b)(2)(A), the Court may also
require the party, her attorney, or both to pay reasonable
expenses caused by the failure to appear. Fed.R.Civ.P.
and Kisling each twice failed to appear for properly noticed
depositions without providing any excuse. Even now, in
responding to the motion, another of their attorneys, Josh
Sanford, provides that he “is neither in a position to
make excuses for Barnum and Kisling's failure to appear
for depositions on March 26 nor to guarantee that either will
appear for a future deposition.” (Doc. 40, p. 6). He
fails to state whether he is in a position to explain Barnum
and Kisling's absence from their other noticed
depositions. The Court is left to conclude that the failure
of Barnum and Kisling to appear was, in every instance,
willful, and will sanction Barnum and Kisling with dismissal
of their actions, with prejudice.
there is no justification offered, substantial or otherwise,
for the failure to appear, and because the circumstances do
not otherwise indicate it would be unjust, the Court will
also award reasonable expenses, including attorney's
fees, to Defendant, both for the missed depositions and for
the instant motion. These expenses will not be awarded
against Barnum and Kisling, who are sufficiently sanctioned
by dismissal of their claims. Instead, deposition related
expenses will be awarded against attorney Stephen Rauls,
personally, and motion related expenses will be awarded
against attorney Josh Sanford, personally.
and Rauls have appeared before the undersigned in numerous
FLSA actions. See, e.g., Kaup v. Baldor Electric
Co., 2:17-CV-02049 (Sanford and Rauls); Easley, et
al. v. Confluent Ltd. Co., 5:17-CV-05065 (Sanford and
Rauls); Jordan, et al. v. RHD, Jr., Inc.,
2:16-CV-02227 (Sanford); Okada, et al. v. Eagle's
HVAC, LLC, et al., 2:16-CV-02245 (Sanford); Follis,
et al. v. Eagleone Hot Shot, Inc., 2:15-CV-02128
(Sanford and Rauls); Martinez, et al. v. Bost, Inc.,
2:14-CV-02090 (Sanford); Simms, et al. v. Northport
Health Servs. Of Ark., L.L.C., et al., 2:12-CV-02252
(Rauls). In many of these cases, the Court has been called on
to review a settlement agreement, and to approve or deny
attorney's fees and costs after reviewing work claimed by
Sanford or Rauls. This experience has left the Court with a
strong impression that Sanford and Rauls have very little
interest in engaging in or responding to discovery, and that
most of their FLSA litigation efforts are instead directed
toward obtaining a settlement for Plaintiffs that includes a
large fee award for attorneys appearing from the Sanford Law
Firm. Based on this experience, the Court believes in this
case that Rauls and Sanford share responsibility for Barnum
and Kisling's failure to appear and for the expenses that
failure has caused to Defendant.
THEREFORE ORDERED that Defendant's motion for sanctions
(Doc. 38) is GRANTED, and the claims of opt-in Plaintiffs Kim
Barnum and Judy Kisling are DISMISSED WITH PREJUDICE.
FURTHER ORDERED that Defendant file a motion for expenses,
with its expenses invoiced, within 14 days of entry of this
order so that the Court may determine what amount of expenses
to award against Sanford and Rauls. Plaintiffs ...