Metropolitan Cooperative Association and Metropolitan Cooperative Association, Reorganized

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
METROPOLITAN COOPERATIVE
ASSOCIATION,
Debtor.
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Case No. 08-00527
(Chapter 11)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER RE MOTION TO
RECONSIDER MEMORANDUM DECISION AND ORDER RE MOTION FOR SANCTIONS
William C. Johnson, Jr. seeks reconsideration of this
court’s prior Memorandum Decision and Order re Motion for
Sanctions, addressing a motion filed by M Y New Hampshire, LLC
(“MYNH”) for sanctions based on the failure of the debtor
(“Metropolitan”) to appear for deposition through the individual
it designated under Fed. R. Civ. P. 36(b)(2) to testify on its
behalf. 	Johnson’s motion will be denied.
Johnson stated in his opposition to MYNH’s motion that:
On the eve of the deposition, debtor’s counsel was
informed by the 30(b)(6) designee that she may not be
able to attend the deposition due to her employment.
Debtor’s counsel informed her that she was obligated to
attend and to inform her employer of this obligation.
Ms. Brown informed debtor’s counsel that she would call
him later that evening with a definitive answer as to
her attendance.
The document below is hereby signed.
Signed: August 05, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	It is puzzling that Johnson does not state whether Brown
called him later to provide him with a definitive answer
regarding her attendance. 	If Brown called Johnson to confirm
that she would not appear due to her employment, that would
strengthen the case for imposing sanctions against Johnson. 	In
an effort to minimize the fees already being imposed against
Johnson (which imposition of fees is warranted even if Johnson
did not definitively learn that Brown would not attend the
deposition), I will not hold a hearing to ascertain whether
Johnson definitively learned that Brown would not appear for the
deposition.
2
Debtor’s counsel informed Reginald Richter to be
certain that he was in attendance in the event Ms.
Brown did not attend the deposition because it would
serve as a basis for a sanctions violations and that
creditor’s counsel will go to untold lengths to make
this appear as if debtor’s counsel purposefully
violated the rules.
Opp. to Motion at 2. 	In the prior Memorandum Decision and Order,
at p. 3, the court observed that:
Despite Johnson being aware that Brown might be unable
to attend, depending on the outcome of discussions with
her employer, and having alerted Richter to be sure to
attend the deposition because Johnson (mistakenly)
thought that Richter’s appearing would prevent an award
of sanctions if Brown did not attend the deposition,
Johnson did not communicate to MYNH’s counsel by
telephone or e-mail that Brown might not appear.
Johnson’s motion for reconsideration focuses on the court’s
Memorandum Decision and Order having treated Johnson as though he
had been definitively told that Brown would not appear.
Johnson’s opposition to MYNH’s motion, however, stated that Brown
told him that “she would call him later that evening with a
definitive answer as to her attendance,” and Johnson does not
contend that Brown called him to tell him that she would attend. 1
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Johnson later confirmed in an e-mail to MYNH’s counsel that:
Ms. Brown contacted me on the eve of the depositiion
[sic] and informed me of her inability to attend.
While I would have preferred that she attend the
deposition, it was unavaoidable [sic]. 	I informed her
that Mr. Richter would be present anyway to avoid the
very claims that you are making.
Based on the foregoing communication, it is obvious that Johnson,
after speaking with Brown, thought that Brown planned not to
attend unless she changed her mind (for example, after contacting
her employer). 	Johnson should have let MYNH’s counsel know that
Brown had advised him that she was unable to attend due to her
employment, and that he (Johnson) had told Brown to talk to her
employer, but that he did not yet have any definitive answer
(promised by Brown to be conveyed later that evening) as to
whether she had changed her mind and decided to attend.
Johnson’s failure to alert MYNH’s counsel in that regard is a
sufficient basis for sanctions even if Johnson still thought
there was some possibility that Brown would change her mind and
decide to appear.
The court inferred in the prior Memorandum Decision and
Order that Johnson learned the evening before that Brown
definitely would not be appearing for the deposition on May 14,
2009, based on Johnson’s later e-mail in which he stated that
“Ms. Brown contacted me on the eve of the depositiion [sic] and
informed me of her inability to attend.” 	Even if Johnson did not
learn definitively that Brown would not appear, and the court’s
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2 	Johnson offers no explanation for how Richter, the
attorney who appeared at the deposition, and who called MYNH’s
attorneys beforehand and advised that Brown would not be
appearing, knew that Brown was not going to appear. 	If Richter
knew that Brown was not going to appear, Johnson has offered no
reason why he, Johnson, did not also definitively know that Brown
was not going to appear. 	But I need not rely on that lack of
explanation in imposing sanctions against Johnson. 	Sanctions are
appropriate even if he did not definitively know that Brown would
not appear.
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inference was unwarranted, it is clear that Johnson knew that
Brown’s intention was not to appear unless swayed to change her
mind. 	Likewise, by the end of the evening, Johnson was aware
that Brown had not communicated to him any change with respect to
her intention not to attend the deposition. 2 	Johnson should have
informed MYNH’s counsel that Brown’s stated intention was not to
appear due to her employment unless she communicated a change of
mind by the end of the evening, and that he would alert MYNH’s
counsel of what he heard from Brown as to whether she would
appear. 	Once he did not hear from Brown by the end of the
evening, Johnson should have told MYNH’s counsel that, not having
heard from Brown, he had to assume that she intended not to
appear due to her employment, and he should have likewise
suggested a rescheduling of the deposition in order that MYNH
would avoid the expense of attending the deposition. 	Johnson’s
failure to do so unnecessarily put MYNH to expenses, including
both attorney’s fees for attending the deposition (including
traveling to and setting up for the deposition) and the cost of a
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3 	This is not an issue addressed by Johnson’s Motion for
Reconsideration, and, accordingly, attorney’s fees were not
incurred by MYNH with respect to this issue. 	In other words, the
attorney’s fees that MYNH did incur were incurred with respect to
successfully rebutting grounds that Johnson did raise. 	Those
fees arose by reason of Johnson’s inappropriate conduct, and thus
warrant awarding the fees under Rule 37.
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court reporter.
However, Johnson’s conduct was not responsible for MYNH’s
attorneys having prepared for the deposition prior to the evening
before the deposition, and any fees relating to preparation that
occurred before that evening and that turned out to be wasted
because it had to be repeated later ought not be recoverable from
Johnson, and the prior Memorandum Decision and Order is amended
accordingly. 3 	It is thus
ORDERED that Johnson’s Motion [Dkt. No. 278] for
Reconsideration of the Court’s Order Dated June 30, 2009 Granting
the Creditor MYNH Motion for Sanctions is DENIED, but the
Memorandum Decision and Order is amended in accordance with the
foregoing paragraph, and it is further
ORDERED that MYNH shall be reimbursed by William C. Johnson,
Jr. for the reasonable costs, fees and expenses incurred by MYNH
with respect to Johnson’s Motion for Reconsideration, and it is
further
ORDERED that MYNH shall file a supplemental Statement of
Expenses outlining its reasonable costs, fees and expenses
incurred within ten (10) days from the entry of this Order, and
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6	O:\TEEL\Judge Temp Docs\Metropolitan Coop Assocn - Mem Decsn re Mtn to Reconsider Ruling re Mtn of MYNH for Sanctions v6.wpd
that Johnson may file an objection thereto within 14 days after
the filing of the same.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Office of United States
Trustee; Paul M. Nussbaum, Esq.; Brent C. Strickland, Esq.; Aryeh
E. Stein, Esq.
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