United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
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.
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).
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).
Order entered October 31, the Court denied both emergency
motions (Doc. 8).
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
(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.
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.
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
Office@TinoLegal.com.” 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).
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).
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
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).
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