Kartagener v. Carnival Corp., Case No. 18-CV-20974-KING/LOUIS
| Decision Date | 17 May 2019 |
| Docket Number | Case No. 18-CV-20974-KING/LOUIS |
| Citation | 380 F.Supp.3d 1290 |
| Parties | Hannah KARTAGENER, Plaintiff, v. CARNIVAL CORPORATION, a Panamanian Corporation d/b/a Carnival Cruise Lines, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Edward Steven Schwartz, Nicholas I. Gerson, Philip Maurice Gerson, David L. Markel, Gerson & Schwartz PA, Miami, FL, for Plaintiff.
John Michael Magee, Carnival Cruise Lines, Miami, FL, for Defendant.
ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS
THIS CAUSE comes before the Court upon Plaintiff's Motion for Sanctions and Incorporated Memorandum of Law (ECF No. 19). This matter was referred to the undersigned United States Magistrate Judge by the Honorable James Lawrence King, United States District Judge (ECF No. 20). A hearing was held on the subject Motion on April 2, 2019, following which additional briefing was requested to specifically identify and address the prejudice to Plaintiff suffered as a result of Defendant's violation of Rule 30 of the Federal Rules of Civil Procedure. Upon consideration of the Motion, Defendant's Response, arguments at the hearing, and supplemental briefing, the Motion is granted, in part.
In this negligence action, Plaintiff alleges that she was injured on Defendant's cruise ship when she slipped in water pooled in or around an elevator that she had ridden in, causing her serious knee and leg injuries. On February 19, 2019, the Court entered a Scheduling Order, setting the discovery deadline to expire on October 2, 2019, and trial to commence on February 10, 2020 (ECF No. 18).
The present discovery dispute arises from Plaintiff's attempt to depose Defendant pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Plaintiff's counsel noticed the deposition and provided a list of topics for examination. Plaintiff's Second Notice of Taking Deposition duces tecum categorized the topics into sections titled "Incident/Investigation," "Policies and Procedures," and "Miscellaneous." The "Miscellaneous" section included topics regarding out of service elevators on the subject voyage, repairs connected to an identified pipe burst near the scene of the accident, and service and maintenance reports on the subject voyage and for a year prior to the accident.
Defendant designated Monica Petisco as its corporate representative, and the Parties coordinated her deposition to take place on December 13, 2018. At no time prior to the deposition, did Defendant serve objections to any noticed topic. On the morning of Ms. Petisco's deposition, Defendant's counsel, Michael Magee, advised Plaintiff that he intended to raise objections, and that Ms. Petisco would not be designated on every noticed topic.
MR. GERSON: Okay. Now before we get started, I have a copy of the notice and counsel for Carnival, Mr. Magee, has indicated that you are not here to testify as to certain topics...And just for the record this was initially – this notice was initially sent back on May the 8, [2018]. And there had been no objections raised until today. So this is news to me.
See Petisco Dep. (ECF No. 19-5, at 5:6-9, 6:9-11). Specifically, Defendant's counsel raised objections to several of the topics provided in the Notice, including the Incident/Investigation and Policies and Procedure topics. (id. at 8:2-8). He further informed Plaintiff's counsel that Ms. Petisco was not designated to testify as to any of the topics in the "Miscellaneous" section of the Notice but that she would be able to testify regarding Plaintiff's accident investigation (ECF No. 19-5 at 11:10-23), and that Defendant intended to produce a second unidentified corporate representative to testify those topics (ECF No. 19-5 at 12:7-25).
Despite Ms. Petisco's purported designation to speak on the subject of the accident investigation, she was unable to provide factual information beyond that which had already been discovered to Plaintiff. She had not, for example, reviewed Defendant's incident report of the incident, which had been withheld from production on grounds of privilege (ECF No. 19-5 at 17:14-15). Similarly, Ms. Petisco was ostensibly presented to testify on the noticed topic of prior accidents that had occurred, and which were disclosed to Plaintiff through the course of discovery, but she had no additional information to offer because she had not reviewed the incident reports created by Defendant in regard to those incidents (ECF No. 19-5 at 104:2-18). The incidents were apparently available to her during her deposition, but defense counsel refused to allow her to review the reports absent agreement that permitting her to testify about what she learned from the reports did not constitute a waiver of privilege over the reports (id .).
The Parties attempted a second corporate representative deposition in February 2019. On February 7, 2019, Defendant presented Joshua Manloloyo, the chief plumber at the time of Plaintiff's fall, as its corporate representative to testify regarding prior pipe bursts and the repairs of same. Defendant designated a third witness to testify regarding elevator maintenance on the subject vessel. During Mr. Manloloyo's deposition, which was conducted in Tampa, it became apparent that he was not prepared to testify about all prior pipe bursts Defendant had disclosed, but rather was limited to his personal knowledge and experience as chief plumber on the vessel during a limited time. See Manloloyo Dep. (ECF No. 19-6 at 84:15-25, 85:1-22).
Two hours into Mr. Manloloyo's deposition, Defendant's counsel notified Plaintiff's counsel that the witnesses had to return to a ship and that the deposition would need to end (id. at 90:8-13). Plaintiff's counsel objected to the termination of the deposition and stated that he had not been able to depose the second witness designated to speak on the subject of elevator maintenance. Over Plaintiff's counsel's objections, Defendant's counsel terminated the deposition at 1:30 PM and left with the two witnesses. The Parties have not since attempted to schedule any additional Rule 30(b)(6) deposition.
Plaintiff filed the subject Motion, seeking sanctions pursuant to Federal Rule of Civil Procedure 37 against Defendant in the form of entry of a default judgment or alternatively for a determination that the element of notice of a hazardous condition is established. The Court held a hearing on Plaintiff's Motion on April 2, 2019. The Court ordered Plaintiff to file a supplemental brief describing the prejudice Plaintiff suffered as a result of Defendant's failure to present a prepared witness at either the noticed or continued deposition (ECF No. 28). Plaintiff filed her supplemental memorandum (ECF No. 29), to which Defendant responded (ECF No. 31).
Rule 30(b)(6) of the Federal Rules of Civil Procedure governs depositions of corporations. Rule 30(b)(6) provides that the deposition notice "must describe with reasonable particularly the matters for examination." Fed. R. Civ. P. 30(b)(6). The organization must designate one or more persons to testify on its behalf as to the matters identified in the deposition notice. Id. The organization has a "duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved." Continental Cas. Co. v. First Financial Employee Leasing, Inc. , 716 F.Supp.2d 1176, 1189 (M.D. Fla. 2010) (quoting Brazos River Auth. v. G.E. Ionics, Inc. , 469 F.3d 416, 433 (5th Cir. 2006) ). The organization "must prepare the designee to the extent matters are reasonably available, whether from documents, past employees, or other sources." Id. Moreover, a corporation does not satisfy its obligations under Rule 30(b)(6) by simply producing an unprepared designee. If the designated deponent is unable to answer questions regarding the subject matter as to which she was selected to testify about, the corporation has failed to satisfy the requirements of Rule 30(b)(6) and is subject to sanctions. King v. Pratt & Whitney, a Div. of United Techs. Corp. , 161 F.R.D. 475, 476 (S.D. Fla. 1995) ; Resolution Trust Corp. v. Southern Union Co., Inc. , 985 F.2d 196, 198 (5th Cir. 1993) ().
The Court finds that Defendant's appearance at the two attempted depositions violated Rule 30(b)(6). On the first noticed date, defense counsel advised Plaintiff's counsel on the morning of the deposition that the sole witness presented was not designated to testify on some topics, including topics related to Defendant's actual or constructive notice of the condition Plaintiff alleges led to her injuries: an identified pipe burst during the subject voyage; previous water pipe leaks and complaints of pipe bursts on the vessel on which Plaintiff was injured for one year prior Plaintiff's fall; and regarding prior elevator repairs (ECF No. 19-5, pg. 5).
(ECF No. 19-5 at 11:10-23). There can be no dispute that Defendant failed to appear on the noticed date with respect to these topics on which Ms. Petisco was not designated. While corporations are permitted to appear through...
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...employees, or other sources." Brazos River Auth. v. GE Ionics, Inc. , 469 F.3d 416, 433 (5th Cir. 2006) ; Kartagener v. Carnival Corp. , 380 F. Supp. 3d 1290, 1294 (S.D. Fla. 2019). If the designee is not able to answer questions regarding the subject matter he was designated to testify abo......