Colombo Bank, F.S.B. v. Barnes

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
JAMES G. BARNES and IRALINE
G. BARNES,
Debtors.
____________________________
COLOMBO BANK, FSB,
Plaintiff,
v.
JAMES G. BARNES,
Defendant.
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Case No. 04-01124
(Chapter 7)
Adversary Proceeding No.
06-10028
DECISION AND ORDER RE MOTION FOR SANCTIONS
Except to allow the plaintiff additional time to conduct the
defendant's deposition, the court will deny the plaintiff's
motion for sanctions, subject to reconsideration if the plaintiff
disputes the accuracy of the defendant's counsel's affidavit. 	In
her affidavit, the debtor's counsel, Janet M. Nesse, recites that
she and Stephen Nichols, the attorney for the plaintiff, had
“[an] understanding that the deposition would not take place
until after the Court had ruled on the Motion to Dismiss.” 	The
The order below is hereby signed.
Signed: September 08, 2006.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
Case 06-10028 Doc 30 Filed 09/08/06 Entered 09/08/06 14:46:55 Desc Main
Document Page 1 of 3

1 Whether the understanding was binding may turn on the
circumstances. 	When the understanding was reached, Ms. Nesse may
have had plenty of spare time to file a motion for a protective
order if she and Mr. Nichols had failed to reach an
understanding. 	She may not have had spare time to do so in mid-
July.
2
plaintiff filed no reply controverting Ms. Nesse's affidavit,
and, in opposing a recent motion by the defendant for an
enlargement of the time for discovery, has not suggested there
was no such understanding. 	I will thus assume that there was
such an understanding unless the plaintiff seeks reconsideration.
Accordingly, Ms. Nesse had a good faith basis for believing
that Mr. Nichols was bound by that understanding, and I will not
attempt to decide whether that belief was a correct view of the
law. 	Even if Mr. Nichols had a unilateral right to terminate the
agreement, 1 Ms. Nesse viewed it as inappropriate for Mr. Nichols
to renege, and under the circumstances sanctions are unwarranted.
However, the plaintiff is entitled to an enlargement of time
to take the deposition because both parties understood that the
deposition would be delayed until after issuance of the decision
on the motion to dismiss.
It is accordingly
ORDERED that the plaintiff's motion for sanctions is denied
without prejudice to renewal in the event that the plaintiff
controverts Ms. Nesse's affidavit. 	It is further
ORDERED that the plaintiff may re-notice the defendant's
Case 06-10028 Doc 30 Filed 09/08/06 Entered 09/08/06 14:46:55 Desc Main
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3	O:\JUDGTEMP\Colombobank vs Barnes Decision re Mtn for Sanctions-v2.wpd
deposition for a mutually agreeable date to take place no later
than October 27, 2006.
[Signed and dated above.]
Copies to:
Office of the United States Trustee; all counsel of record.
Case 06-10028 Doc 30 Filed 09/08/06 Entered 09/08/06 14:46:55 Desc Main
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