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Starwood Hotels & Resorts Worldwide, Inc v. George Bibb

May 6, 2011

STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
PLAINTIFF,
v.
GEORGE BIBB,
DEFENDANT.



The opinion of the court was delivered by: Michael A. Shipp United States Magistrate Judge

Not for Publication

OPINION AND ORDER TO APPEAR FOR DEPOSITION AND TO SHOW CAUSE

This matter comes before the Court by way of Plaintiff Starwood Hotels & Resorts Worldwide, Inc.'s ("Plaintiff" or "Starwood") motion for contempt and sanctions against Defendant George Bibb ("Defendant" or "Bibb"). (Docket Entry Number ("Doc. No.") 1 ("Pl.'s Moving Br.").) Defendant did not oppose Plaintiff's motion.

For the reasons expressed below, Plaintiff's motion is granted in part and denied in part without prejudice.

I. STATEMENT OF FACTS

The parties are well-versed in the underlying facts and, as such, the Court will address only those facts relevant to the instant motion. This matter arises out of an underlying personal injury action currently pending in the Northern District of Georgia, Atlanta Division. The plaintiff in the underlying Georgia action, Jason N. Gordon ("Mr. Gordon" or "Gordon"), filed a negligent security claim after he was allegedly attacked in the lobby of one of Starwood's Atlanta hotels by unknown third parties. (Pl.'s Moving Br. 2.) Bibb, a college friend of Gordon's, was listed by Gordon's attorney as a witness to the alleged attack. Id. Gordon's counsel refused to assist Starwood in scheduling Bibb's deposition in the underlying Georgia case so Starwood served Bibb with a deposition subpoena issued by the United States District Court for the District of New Jersey.*fn1

Starwood sent a letter and subpoena to Bibb on September 30, 2010, demanding his appearance at a deposition scheduled on October 19, 2010, at 11:00 a.m., in Fort Lee, N.J. (Pl.'s Moving Br. 3.) Bibb received the letter and subpoena via personal service at his residence on October 2, 2010. (Id.) Mr. Gordon's counsel was also served with a notice of Bibb's scheduled deposition. (Id. at 3.)Despite receiving notice of the deposition, neither Bibb nor Mr. Gordon's counsel appeared on the scheduled date. (Id. at 4.) No objection to the subpoena was filed nor was any notice given that Bibb could not or would not attend the deposition. (Id. at 3.)

At approximately 5:00 p.m. on October 19, 2010, six hours after the scheduled deposition, Bibb notified counsel for Starwood that "something came up at work," preventing him from attending the deposition. (Id. at 6.) Starwood, however, asserts that this explanation is inexcusable as "[t]he subpoena required Mr. Bibb to travel approximately five miles from his home" and he received "more than two weeks advance notice of the deposition." (Id. at 5.) In addition, Starwood alleges that the failure of Mr. Gordon's counsel to appear confirms that neither he nor Bibb had any plans to appear for the deposition in the first instance. (Id. at 6.) As Starwood asserts, "[i]f it was truly a last minute emergency, how did Mr. Gordon's counsel know he did not have to travel to New Jersey and appear for the deposition[?]" (Id.)

Plaintiff requests that this Court enter an Order imposing the following sanctions:

(1) an order of contempt against George Bibb, pursuant to Fed. R. Civ. P. 45, for failure to comply with a subpoena;

(2) . . . reimbursement for all of its costs and expenses incurred in attending the deposition, in the amount of $3,311.00, plus the costs of filing the instant complaint (at least an additional $750); and

(3) an order compelling Bibb to appear for a deposition at a time convenient to [Starwood].

(Id. at 1-2.)

II. LEGAL STANDARD & ...


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