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Pacific West Site Services, Inc. v. Vesci

United States District Court, D. North Dakota, Southwestern Division

May 5, 2015

Pacific West Site Services, Inc., Plaintiff,
v.
Gary Robert Vesci, Defendant.

ORDER IMPOSING SANCTIONS

CHARLES S. MILLER, Jr., Magistrate Judge.

Before the court is plaintiff's motion for sanctions for defendant's counsel having cancelled a deposition on less than 24-hours notice.

I. BACKGROUND

The underlying disputes between the parties have been explained in prior orders of this court as well as by the federal district court for the Eastern District of California in its remand of plaintiff's removal of a related action pending in state court in California. At bottom, this case is like a number of others filed in this District where out-of-state investors claim they have been misled or are the victims of fraud with respect to investments made in businesses touted as being able to "cleanup" off of the Bakken oil play in North Dakota.[1]

On Thursday, January 22, 2015, defendant's counsel, Robin Perkins, served a notice for taking the deposition of Ken Silva, plaintiff's CFO, for the following Tuesday, January 27, 2015, at Perkins' office in Sacramento, California. Plaintiff's counsel had already scheduled the depositions of defendant Gary Vesci and his father for January 29-30, 2015, the Thursday and Friday of the same week, that were going to be taken by plaintiff's California attorney, Bill Warne of the firm of Downey Brand LLP.

On January 26, 2015, at 1:22 p.m. (less than 24 hours prior to the scheduled deposition), Perkins cancelled the Silva deposition by sending an email to Warne. This was after attorney Edmund Searby of the firm of Baker & Hostetler, which was also representing plaintiff, had traveled from his office in Cleveland, Ohio to defend the deposition.

Plaintiff in this case is represented by three separate law firms. The firm that initially took the lead role and initiated the action is Baker & Hostetler, a large national firm. Three attorneys from its Cleveland, Ohio office have entered appearances in this action: Searby; Darren Crook; and Ruth Hartman. Plaintiff later retained Downey Brand, a regional law firm headquartered in Sacramento, California. From this firm, attorney Warne has entered an appearance and appears now to be taking a lead role in the case. The third firm is the Vogel Law Firm, another regional law firm headquartered in North Dakota, which presumably was retained simply to act as local counsel.

Defendant is represented by Perkins & Associates, a small Sacramento law firm. Two attorneys from the firm, Perkins and Michael Shoff, have entered appearances. However, it appears that they may be assisted by another attorney from their firm. Before turning to the merits of the motion, it is helpful first to consider some of the more relevant correspondence exchanged between counsel for the parties:

• Email from Warne to Perkins, October 22, 2014, at 8:06 a.m.
Hi Robin,
It was good talking to you. As discussed, I have been provisionally retained to represent Charles Somers and his interests in the litigation now proceeding in both ND federal court and in Sacramento
• Email from Searby to Perkins, December 2, 2014, 7:02 p.m.
Robin, following up on our phone call, this is to confirm that the deposition of Ken Silva and Pacific West will take place on December 16, 2014 at your office. We are working to locate additional documents responsive to your second requests. I will contact you this week regarding the timing of the production and will serve any written objections on or before December 8.
Also, please continue to hold December 17 for the deposition of Gary Vesci and December 18 for the deposition of Victor Vesci. I understand that Bill Warne will follow up with you shortly to confirm the dates for the depositions of your client and his father. Best,
• Letter from Hartman to Perkins and Shoff dated January 12, 2015, by email and overnight mail
Dear Counsel:
Enclosed please find a disk containing additional documents, bearing a bates range of PW002796-PW0012251, which are responsive to Vesci's Request for the Production of Documents from Pacific West and Ken Silva and are produced subject ...

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