Detsch & Co. v. American Products Co.
| Decision Date | 20 March 1944 |
| Docket Number | No. 10479.,10479. |
| Citation | 141 F.2d 662 |
| Parties | DETSCH & CO. v. AMERICAN PRODUCTS CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Harry N. Grover and Herbert Pothier, both of San Francisco, Cal., for appellant.
Theodore R. Meyer, M. B. Plant, and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for appellee.
Before GARRECHT, MATHEWS and STEPHENS, Circuit Judges.
Appellant, a California corporation, brought an action in a State court of California against appellee, an Ohio corporation, for damages in the sum of $42,168. On petition of appellee, the action was removed to the District Court of the United States for the Northern District of California. There appellant amended its complaint. Appellee answered, praying that the amended complaint be dismissed, and that appellee have judgment against appellant for damages in the sum of $50,000.
Thereafter, on March 26, 1943, appellant gave appellee notice in writing that it would take the depositions of two witnesses, J. W. Sheedy and H. W. Zimmerman, residents of Los Angeles California, upon oral examination at room 477 of the I. W. Hellman Building in Los Angeles at eleven o'clock A.M. on April 3, 1943.1 Appellee, by its attorney, M. B. Plant, attended pursuant to the notice, at the time and place specified, but appellant did not attend at that time, by attorney or otherwise. It did at a later time — one o'clock P.M. on April 3, 1943 — attend by its attorney, Herbert Pothier, and did then proceed with the taking of Zimmerman's deposition, but it did not then or at any time proceed with the taking of Sheedy's deposition. Instead, it excused Sheedy from attending, and Sheedy consequently did not attend. Appellee, however, was not advised, and did not learn until one o'clock P.M. on April 3, 1943, that Sheedy's deposition would not be taken.
On April 7, 1943, appellee moved the court for an order requiring appellant to pay appellee the amount of the reasonable expenses incurred by appellee and Plant in attending at the time and place specified in the notice. The motion was supported by Plant's affidavit. The court heard the motion and on April 14, 1943, entered an order granting the motion and requiring appellant to pay appellee, as reasonable expenses, $151.30.2 From that order this appeal is prosecuted.
The motion and the order were based on Rule 30(g) (1) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, which provides: "If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by him and his attorney in so attending, including reasonable attorney's fees."
In this case, the party giving the notice was appellant; the other party was appellee; the notice given was a notice of the taking of two depositions (Sheedy's and Zimmerman's); appellee attended by attorney pursuant to the notice; appellant failed to attend at the time specified in the notice; and when it did attend,...
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...attorney's fees, when the party noticing a deposition fails to attend and proceed with the deposition. See Detsch & Co. v. American Products Co., 141 F.2d 662 (9th Cir.1944) (affirming an award of attorney's fees when the noticing party cancelled one of two scheduled depositions). On Novemb......
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...court in this state has considered the provisions of section 2019, subdivision (g), Code of Civil Procedure. Detsch & Co. v. American Products Co., 9 Cir., 141 F.2d 662, 663, is apparently the only decision of an appellate court involving the imposition of sanctions under rule 30, subdivisi......
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...without proceeding forward with a deposition is sufficient to invoke the provisions of Rule 30(g). See Detsch & Co. v. American Products Co., 141 F.2d 662 (9th Cir. 1944). Plaintiffs also claim that it was not unreasonable to refuse to release counsel in the Franke and Cronin cases because ......
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CHAPTER 14 - 14-3 Discovery Sanctions
...attorney's fees, if the noticing party failed to: (1) attend and proceed with the deposition. . . ."); Detsch & Co. v. Am. Prods. Co., 141 F.2d 662, 663 (9th Cir. 1944) (affirming an award of expenses incurred by a party who attended a noticed deposition that did not occur); In re K.R., 02-......