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Kirk v. Schaeffler Group USA, Inc.

United States District Court, W.D. Missouri, Southwestern Division

January 26, 2015

JODELLE L. KIRK, Plaintiff,
v.
SCHAEFFLER GROUP USA, INC., FAG HOLDING, LLC, and FAG BEARINGS, LLC, Defendants.

ORDER GRANTING MOTION FOR SANCTIONS

GREG KAYS, District Judge.

This case arises from Plaintiff Jodelle Kirk's allegation that Defendants are liable for introducing trichloroethylene ("TCE") into the environment near her childhood home, contaminating the groundwater and causing her to develop a variety of serious illnesses.

Now before the Court is Defendants' Motion for Sanctions (Doc. 105). Defendants ask the Court to sanction Plaintiff for allegedly breaching an agreement to reimburse Defendants for travel costs incurred as a result of Plaintiff's last minute change in deposition locations. For the following reasons, the motion is GRANTED.

Background

The factual background of this dispute is as follows. Plaintiff originally agreed to produce an expert witness on October 5, 2014, at the witness's office in Clinton Township, Michigan, near Detroit, Michigan. Defendants duly noticed up the deposition for that date and time. Five days before the deposition, Plaintiff's counsel sought to change the location of the deposition to counsel's office in Independence, Missouri, a suburb of Kansas City, Missouri. The proposed change required Gary Roberts, the Los Angeles-based defense attorney scheduled to depose the witness, to cancel his existing hotel and flight reservations and re-book them to Kansas City.

Defendants agreed to the location change on the condition that Plaintiff agree to pay any expenses incurred in making the change. After some back and forth between the parties about how much these changes should cost-Plaintiff contended that Defendants would save money because the Kansas City based defense attorneys would have no travel expenses, while Defendants denied that the Kansas City based attorneys were planning to attend the deposition in Michigan-Plaintiff's counsel Kenneth McClain agreed to reimburse Defendants "up to $1, 100" in expenses in return for moving the deposition.[1]

Defendants then issued an amended deposition notice stating it would be held in Independence, Missouri. That same day Defendants sent Plaintiff documentation showing that the location change cost Defendants $1, 023.63 in additional travel expenses.

Defense counsel Roberts subsequently appeared at the deposition with two Kansas City-based defense attorneys, Wade Carr and Greg Wolf.[2] Mr. McClain, Andrew Smith, and Lauren McClain represented the Plaintiff at the deposition.

The deposition began with the following exchange:

MR. McCLAIN: I'm making a record here first. We were requested to pay a cancellation fee and a change fee on the basis that this would be more expensive, with the specific representation made in writing that Wade Carr was not coming and Greg Wolf was not coming to this deposition. As everything in this case, that was a misrepresentation by lawyers that don't seem to be able to tell the truth about anything, and so we're not paying any bill, so if you want to proceed on that basis, go ahead, but if you don't, leave and file a motion, but we're not paying any bill, just to let you know.
MR. ROBERTS: The representation was that neither Mr. Carr nor Mr. Wolf were going to attend in Detroit.
MR. McCLAIN: And that they weren't attending here.
MS. McCLAIN: You said Mr. Wade - Mr. Carr, or Mr. Carr and Mr. - whatever his last name is -
MR. McCLAIN: Wolf.
MS. McCLAIN: They don't plan on attending, period, in Michigan.
MR. McCLAIN: So it's a lie, why can't you guys just tell the truth? Why do you tell lies when the truth would do, you know? It's a cultural problem in your law firm. Everything is a lie, and all of you are liars, period, so we're not paying it. So if you want to fight about that at some other time, fine, but unless you agree on the record that that's waived at this time, Mr. Carr is ...

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