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Twin Rivers Engineering, Inc. v. Fieldpiece Instruments, Inc.

United States District Court, M.D. Florida, Orlando Division

July 18, 2018




         This cause came on for consideration with an evidentiary hearing on Plaintiff Twin Rivers Engineering, Inc.'s Motion to Set Aside Order Awarding Reasonable Attorney's Fees (Doc. 24) and Defendants' Motion to Compel Plaintiff's response to post-judgment discovery requests (Doc. 27). For the reasons set forth herein, Plaintiff's motion to set aside is DENIED and Defendants' motion to compel is GRANTED.


         The history of this dispute is lengthy, but recitation here is necessary to understand the unfortunate circumstances presented. The following chronology is taken from the instant miscellaneous docket and that of the underlying California case.

         On November 23, 2015, Plaintiff Twin Rivers filed a complaint in the Eastern District of Texas against Defendant Fieldpiece alleging claims for: (1) infringement of U.S. Patent No. 7, 022, 993; (2) false marking under 35 U.S.C. § 292; and (3) unfair competition under Section 43(a) of the Lanham Act. Twin Rivers amended its complaint, adding a claim for per se unlawful concerted refusal to deal under 15 U.S.C. § 1, and then filed a second amended complaint, adding CHY Firemate as an additional defendant. The Texas district court granted Defendant Fieldpiece's motion to change venue and transferred the case to the Central District of California. Twin Rivers Engineering, Inc. v. Fieldpiece Instruments, Inc. and CHY Firemate Co., Ltd., Case No. 2:16-cv-04502-MLH (the underlying action). Defendants answered and asserted counterclaims.

         On October 17, 2017, in the underlying action, Defendants issued four amended Fed.R.Civ.P. 30(b)(6) notices of taking Plaintiff's deposition in the Middle District of Florida on four consecutive days commencing Monday, October 30. Defendants also noticed the deposition of Plaintiff's principal, William Williams, to occur on an unknown date around October 30. In addition to the 30(b)(6) deposition, Defendants sought to depose non-party Frank Baker. Defendants noticed Mr. Baker's deposition to occur in Florida on November 3rd and served Mr. Baker with a deposition subpoena issued from the Central District of California (Doc. 1-1). Mr. Baker, unfortunately, was gravely ill.

         On Thursday, October 26, 2017, Plaintiff produced a number of documents to Defendants. On Sunday, October 29, Defendants suggested the parties postpone Plaintiff's deposition from Monday the 30th until Tuesday, October 31, to give Defendants time to review the documents Plaintiff had “dumped” on them. In the same email, Defendants suggested postponing Mr. Baker's deposition until he was more able to be deposed. Plaintiff did not respond to the email. On October 30, Defendants received an email from Mr. Baker's daughter-in-law confirming that he was too sick to testify and at 11:51 that morning, they agreed to cancel his deposition. Defendants served a notice of cancelling the deposition later that day.

         Defense counsel attended the deposition of Plaintiff as scheduled on Monday, October 30, 2017 at 9:30 a.m., in Florida. Plaintiff and its lawyers did not appear for the deposition.

         On October 30, 2017, Mr. Baker, through Plaintiff's local counsel, filed an emergency motion to quash the subpoena, or in the alternative, for a protective order, in this Court (Doc. 1). The motion was signed by Tino Gonzalez, a Florida attorney who is a member of the bar of this District Court. The motion listed two additional lawyers as “counsel for Twin Rivers” - L. Peter Farkas and Lawrence Harbin - neither of whom signed the motion and neither of whom reside in this district or are members of this Court's bar. In the motion, Mr. Gonzalez certified that: “Pursuant to Local Rules and Federal Rule of Civil Procedure 26(c)(1), the undersigned certifies that counsel for non-party Frank Baker has conferred in good faith with counsel seeking discovery, who would not consent to the relief requested herein.” Also on October 30, counsel for Plaintiff filed in this Court an emergency motion for a protective order and to limit the duration of their client's deposition (Doc. 2). As grounds, Plaintiff alleged that Mr. Williams is the corporate representative and Defendants were attempting to depose him for five days in both his corporate and individual capacities, in violation of Fed.R.Civ.P. 30(d)(1). Plaintiff also asserted that: “The parties had previously agreed to commence the depositions on Monday, October 30th but Fieldpiece, on Sunday October 29th, after counsel travelled to Florida, unilaterally cancelled the Monday deposition and announced it would start on Tuesday October 31st.” The motion was signed by Mr. Gonzalez, with Mr. Farkas and Mr. Harbin (who did not sign the motion) also noted as counsel. The motions were accompanied by a handwritten request signed by Mr. Harbin, asking this Court to hold a hearing on the motion to quash and the motion for protective order the next day at 9:30 a.m. (Doc. 3). Because counsel for Mr. Baker and Plaintiff alleged that these matters were emergencies, the Court set both motions for hearing at 10:30 a.m., on October 31 (Doc. 4).[1]

         Between the filing of the motions and the hearing on October 31, Defendants filed written responses to both motions (Docs. 5-6). They represented that they had requested a total of “15 hours over 3 consecutive days with a possible 3 hours on a 4th day'” to depose Plaintiff (Doc. 6 at 2) (emphasis in original). Defendants denied unilaterally cancelling the deposition set for Monday, October 30 and stated that Plaintiff simply failed to appear (Doc. 11 at 2, 5).

         By Order entered October 31, the Court denied both emergency motions (Doc. 8).

         As for the motion to quash:

Plaintiff's attorney told the Court his side did not know until after the motion to quash and for protective order was filed that Defendants had withdrawn the subpoena for Mr. Baker's deposition (Id., pg. 3 at 24). But, in response to the Court's question, Plaintiff's attorney admitted that he had received an email “about ten minutes before the actual time the motion was stamped in with the clerk.” (Id., pg. 3 at 24 - pg. 4 at 1). After listening to counsels' arguments, the Court denied Mr. Baker's emergency motion for a protective order or, in the alternative, to quash the subpoena for his deposition (Id., pg. 7 at 7). The Court took this action in part, because the motion was moot before it was filed.

(Doc. 12; Doc. 8). As for the emergency motion for a protective order with respect to the Rule 30(b)(6) deposition of Plaintiff, the Court denied the motion, as “the scope of discovery of a party is a matter properly determined by the Court where the action is pending.” (Doc. 8; see also Doc. 12). The Court also found that neither motion constituted an emergency.

         On November 1, 2017, Defendants filed in the California case a motion for sanctions pursuant to Rule 37(d)(1)(A)(i) against Plaintiff, based on Plaintiff's failure to attend its deposition on October 30. On November 21, 2017, Plaintiff filed a response to the motion for sanctions and a cross-motion for sanctions pursuant to Rule 26(g)(3), arguing that the four Rule 30(b)(6) notices were an improper attempt to subvert Rule 30(d)(1)'s time limitations.

         Meanwhile, on November 2, 2017, Defendants' counsel informed Plaintiff's District of Columbia based lawyers that Defendants planned to file a “Motion for Sanctions in the Middle District of Florida with respect to the denial of [Plaintiff's] ‘Emergency Motion to Quash.” Counsel conferred, but no resolution was reached and on November 7, 2017, Defendants filed their Motion for Reasonable Expenses and Attorney's Fees (Doc. 11) in this Court. The Court's CM/ECF system shows that the motion was docketed “on 11/7/2017 at 4:30 PM EST” and “Notice has been electronically mailed to: ... Tino Gonzalez,” Plaintiff did not file a response to the motion and, on November 27, 2017, the Court granted the motion as to entitlement, and directed a filing as to the amount of fees to be awarded (Doc. 12).

         On December 11, 2017, the California court issued its Order denying the parties' cross motions for sanctions (Doc. 24-2). In doing so, Judge Huff found that “there is no evidence in the record showing that Plaintiff's failure to attend the 30(b)(6) deposition was due to bad faith. Rather, Plaintiff's failure to attend the deposition appears to be due to a misunderstanding and miscommunication between the parties.” (Id.). Citing, in part, this Court's denial of the motion for protective order, the California court also declined to sanction Defendants (Id.). Notably, the California court made specific mention of the November 27, 2017 Order of this Court granting Defendants' motion pursuant to Rule 37(a)(5)(B) for an award of reasonable legal expenses, including attorneys' fees, incurred in defending against Plaintiff's two October 30, 2017 motions (Id., at n. 1).

         Also on December 11, 2017, Defendants filed in this Court, their verified application for attorney fees and costs relating to the emergency motions (Doc. 14). Defendants' motion includes emails to Mr. Farkas and Mr. Harbin regarding settling the “Florida Attorney's Fees & Costs issue.” (Doc. 14-1). A December 8th email specifically referenced “Judge Smith's Order.” (Id.). Plaintiff did not respond to these emails. The Court's CMECF filing system shows that, on December 11, 2017 at 6:00 PM, “Notice [of the motion] has been electronically mailed to: ... Tino Gonzalez,”

         Plaintiff did not file a response to the December 11th motion. On December 28, 2017, this Court granted the motion in part, awarding $8, 257 in attorney's fees while denying recovery of the claimed costs (Doc. 15).

         On January 29, 2018, Defendants filed a renewed motion to enforce the Order granting Defendants attorney's fees (Doc. 18). As with every other paper filed by Defendants in this case, a Notice was sent by CM/ECF to Mr. Gonzalez. Importantly, the motion included the following certification:

Pursuant to a Court-Ordered Meet & Confer because of Plaintiff's refusal to otherwise Meet & Confer on a variety of issues, the Parties conducted an omnibus Meet & Confer, and Plaintiff indicated it opposes this Motion and will be moving to set aside this Court's Order granting Defendants' attorneys' fees because it contends that neither TRE, its National Counsel or Local ...

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