Robert W. Mitchell (WSBA #37444) HONORABLE JUDGE SUKO...

PLAINTIFF'S MOTION TO COMPEL AND FOR SANCTIONS- 1

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Robert W. Mitchell (WSBA #37444) HONORABLE JUDGE SUKO

Attorney at Law, PLLC

1020 North Washington Street

Spokane, WA 99201

Telephone: 509-327-2224

Thomas G. Jarrard (WSBA #39774)

Law Office of Thomas G. Jarrard PLLC


Spokane, WA 99203

Telephone: 425-239-7290

Matthew Z. Crotty (WSBA #39284)

Crotty and Son Law Firm, PLLC

421 West Riverside, Suite 1005

Spokane, WA 99201-0300

Telephone: (509) 850 7011

Attorneys for Plaintiff Lyle Wixom

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

LYLE WIXOM,

Plaintiff,

v.

IMCO GENERAL CONSTRUCTION,

INC., a Washington Corporation;

FRANK IMHOF and individual, and

COURTNEY IMHOF an individual,

Defendants.

Case No. CV-12-413-LRS

PLAINTIFF'S MOTION TO

COMPEL AND FOR SANCTIONS

DATE: August 16, 2013

TIME: 6:30 p.m.

(Without Oral Argument)

I. INTRODUCTION

Plaintiff sought partial summary judgment adjudication of his USERRA

reemployment claim. Defendants argued that issues of fact existed as to the issue

Case 2:12-cv-00413-LRS Document 75 Filed 07/15/13


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of standing; specifically, whether Mr. Wixom timely applied for reemployment.

Defendants submitted the declaration of Courtney Imhof in support. Ms. Imhof's

declaration misleadingly states that "IMCO has no recollection of ever receiving

[plaintiff's] application for reemployment." At summary judgment defendant

argued that "no such [employment application] was in Mr. Wixom's file" and that

the application's absence was "evidence" that Mr. Wixom never reapplied for

employment as required under the law. The Court denied Mr. Wixom's motion,

discovery continued, and at Ms. Imhof's subsequent deposition she testified that

IMCO had no way of knowing whether Mr. Wixom reapplied for work because

IMCO destroyed the job application records for 2008 - - the year plaintiff

reapplied for work. Indeed, Ms. Imhof admitted it would be "impossible" for

IMCO to have a copy of Mr. Wixom's 2008 application. Confronted with that

testimony, defendants stipulated that Mr. Wixom timely reapplied for work.

Additionally, defendants' plead, as an affirmative defense, that it was

impossible to reemploy Mr. Wixom following completion of his military service.

Customarily such affirmative defenses are driven by the employer's financial

peril: that it is impossible to reemploy a returning service-member when the

company is going broke. To that end, Mr. Wixom sought to test defendants'

affirmative defense by inquiring as to IMCO's officers and directors salaries

during the 2008 - 2009 timeframe: if the officer/director pay went up during that



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time it would call the impossibility affirmative defense into question.

Mr. Wixom sought answers as to the salary information in a Fed. R. Civ. P.

30(b)(6) deposition of IMCO. In response to that inquiry IMCO's counsel

instructed the deponent not to answer even though no protective order existed or

was sought. Further, IMCO's 30(b)(6) deponent was not prepared to testify as to

numerous 30(b)(6) deposition topics.

Courts routinely grant sanctions under such facts and should do so here.

II. NOTICE OF MOTION HEARING DATE AND TIME

The hearing on Plaintiff’s Motion to Compel and Motion for Sanctions will

take place August 16, 2013 at 6:30 p.m without oral argument.

III. CONCISE STATEMENT OF RELIEF

Plaintiff requests that the Court: (A) strike Defendants’ USERRA

reemployment affirmative defense and hold Ms. Imhof in contempt; (B) order the

Defendants to pay Mr. Wixom the attorneys’ fees and costs associated with

conducting the 30(b)(6) deposition and bringing this motion; and (C) compel

defendants to produce IMCO officer/director salary data.

IV. POINTS AND AUTHORITIES

A. STATEMENT OF THE ISSUES

1. Does Courtney Imhof's misleading summary judgment declaration

justify the imposition of sanctions? 2. Does IMCO's conduct, instruction not to



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answer, failure to produce, and failure to prepare a deponent at the 30(b)(6)

deposition, justify the imposition of sanctions? 3. Should IMCO be compelled to

disclose its officers/directors salary data for 2008-2009?

B. STATEMENT OF FACTS

1. Defendants answered Mr. Wixom’s USERRA complaint and pled, as

an affirmative defense, that re-employing Mr. Wixom would have “created an

undue hardship, as a result of a change in circumstances.”1 USERRA allows that

defense. 38 U.S.C. §4312(d)(1)(A).

2. Mr. Wixom sought to test Defendants’ “changed circumstances”

defense and served IMCO with a Fed. R. Civ. P. 30(b)(6) deposition notice that

sought testimony as to IMCO's officers and directors' compensation.2 At

deposition IMCO's counsel instructed the deponent not to answer that question.3

3. Defendants failed to produce a 30(b)(6) witness with knowledge of

certain topic areas designated in the deposition notice.4 IMCO's testifying agent

stated that she received the deposition notice eight days prior to the deposition,

spent "10 minutes" talking to counsel in preparation for the deposition, did not

1 ECF 63, at 11 Aff. Def. No. 9.

2 Jarrard Decl. at ¶3.

3 Id. at ¶17 citing 30(b)(6) Dep. at 28-29.

4 Id. ¶15-21.



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review any documents in preparation for 30(b)(6) Topic No. 1, and, in preparing

to respond to 30(b)(6) Topic No. 10 "threw [her] hands in the air" after looking at

the lists of projects sought in Topic 10 and, in effect, ceased preparation.5

4. Lastly, Courtney Imhof submitted a declaration in response to

Plaintiff's Motion for Summary Judgment. Ms. Imhof's declaration misleadingly

suggested that Mr. Wixom never applied for reemployment, that defendants kept

accurate copies of job applications, and she had no record of his application.6 Ms.

Imhof's counsel, relying on those statements, argued that the non-existence of Mr.

Wixom's application in Mr. Wixom's personnel file was "evidence" that Mr.

Wixom never reapplied for work.7 But at Ms. Imhof's subsequent deposition she

testified that IMCO had no way of knowing whether Mr. Wixom applied for

reemployment because IMCO had destroyed all job applications from 2008 --- the

year Mr. Wixom asked for his job back.8 Confronted with Ms. Imhof's testimony,

the defendants reversed their summary judgment stance and admitted that Mr.

Wixom timely reapplied for reemployment.9

5 Id. at 15-21 citing 30(b)(6) Dep. at 10, 11, 33-34, 37.

6 ECF 48, ¶8.

7 ECF 70, at 8.

8 Mitchell Decl. at ¶¶28, 29.

9 Jarrard Decl. at ¶14.



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C. ARGUMENT.

1. The Court should sanction Ms. Imhof for her misleading

declaration testimony.

A Court may sanction a party who submits a declaration in bad faith. Fed.

R. Civ. P. 56(g); Newman v. Brandon, 2012 WL 4933478 * 4(E.D. Cal. Oct. 16,

2012). Ms. Imhof submitted a declaration in response to plaintiff's motion for

summary judgment. Ms. Imhof declared “IMCO has no record of ever receiving

this application for reemployment that Mr. Wixom claims he delivered on or

about August 11, 2008.”10

At oral argument defense counsel stated: “…IMCO denies that they ever

received any reemployment application in August of 2008 from Mr. Wixom” and

“[t]he fact that that document is not in that file is evidence. That is evidence that

that document was never submitted by Mr. Wixom.”11

Defense counsel relied on

Ms. Imhof’s testimony when making those statements and so did the Court.12

But

the Court was correctly skeptical about Ms. Imhof’s assertions and left the issue of

10 ECF 48 at 8:2-6.

11 ECF 70 at 4:9-11; 8:14-16.

12 ECF 70 at 17:8 (“I think there are factual issues dealing with what happened in

August, potentially.”)



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sanctions open for further adjudication.13

At deposition Ms. Imhof testified that she shreds copies of job applications

every year and that she deletes the electronic copies every two years.14

Ms. Imhof

admitted that it would be “impossible” for IMCO to still have an electronic copy

of Mr. Wixom’s 2008 application and no chance exists of finding Mr. Wixom’s

application in order to verify whether or not it was submitted in 2008.15

Confronted with Ms. Imhof's deposition testimony the defense agreed not to

contest the previously-contested "timely requested reemployment" element of Mr.

Wixom's reemployment claim. Under such facts sanctions are appropriate. Ms.

Imhof misled the Court and counsel by stating that Mr. Wixom did not reapply for

work in 2008 when she knew that it was impossible for her to know the truth of

that assertion given the fact that IMCO destroyed those records years ago.

2. IMCO (a) waived its 30(b)(6) objections by not seeking a protective

order and (b) violated the rules by producing an unprepared

deponent.

As to point (a), IMCO raised varied objections at the 30(b)(6) deposition

and, as to Topic No. 7 (information regarding officer/director salary data), it

13 ECF 70 at 23:1 – 2, 7-8 ( "…and whether the other information from Ms. Imhof

is correct and is problematic.")

14 Mitchell Decl. at ¶¶ 28-29.

15 Id.



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instructed the deponent not to answer. IMCO did not seek (and has not sought) a

protective order as to the 30(b)(6) deposition.

"Unless a party or witness files a motion for a protective order and seeks

and obtains a stay prior to the deposition, a party or witness has no basis to refuse

to attend a properly noticed deposition" and "waive[s] any objection to the

deposition." Charm Floral v. Wald Imports, Ltd., 2012 WL 424581 *2 (W.D. Wn.

Feb. 9, 2012)(citing Fed.R.Civ.P. 30(d)(2); Pioche Mines Consol., Inc. v. Dolman,

333 F.2d 257, 269 (9th Cir.1964)). Failing to testify at deposition is tantamount to

failing to appear. Great Am. Ins. Co. of New York v. Vegas Const. Co., Inc., 251

F.R.D. 534, 542 (D. Nev. 2008).

Topic No. 7 sought information as to IMCO's officer/directory salary data.

IMCO instructed its 30(b)(6) deponent to not answer those questions but did not

seek a protective order. IMCO's failure to move for a protective order waived

IMCO's deposition objections and instruction not to answer - - - an instruction that

is not even allowed under Fed. R. Civ. P. 30(c)(2) as the instruction did not relate

to privilege, a pending order, or Fed. R. Civ. P. 30(d)(3).

As to point (b), once a corporation is named as a deponent it has the duty to

name and prepare individuals to testify on its behalf regarding matters known to

the corporation. Fed. R. Civ. P. 30(b)(6); Commodity Futures Trading Comm’n v.

Noble Metals Intern., Inc., 67 F.3d 766, 771 (9th Cir. 1995). Under Fed. R. Civ.



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P. 37(a)(4) an evasive or incomplete disclosure, answer, or response is treated as a

failure to disclose, answer, or respond and sanctions are imposed against a

corporation when its 30(b)(6) designee is unknowledgeable of relevant facts and it

fails to designate a knowledgeable witness. "Producing an unprepared witness is

tantamount to a failure to appear, which is sanctionable under Rule 37(d).” Black

Horse Lane Assoc. L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000).

IMCO's 30(b)(6) deponent, Ms. Imhof, was not prepared for deposition.16

After receiving the deposition notice Ms. Imhof just “threw her hands up in the

air.”17

Ms. Imhof did not ask for help from IMCO staff, did not look at any

computer records, did not review any documents (besides two spread-sheets), and

did not review the documents her lawyer provided at the deposition. As such, Ms.

Imhof was unable to intelligently respond to Topic Nos. 1 through 10 and

sanctions should issue because of that conduct.18

3. IMCO should be compelled to produce officer/director salary data.

Discovery rules are given liberal treatment and discovery is proper if

relevant to a defendants' defense. Hickman v. Taylor, 329 U.S. 495, 507 (1947);

Fed. R. Civ. P. 26(b)(1). Information sought in discovery is relevant if it "bears

16 Jarrard Decl. at ¶¶ 15-21.

17 Id. at ¶ 20.

18 Id.



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on," or might reasonably lead to information that "bears on," any material fact or

issue in the action. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351

(1978). The salary data of IMCO's officers and directors is relevant to its

impossibility defense under USERRA - - - if it was impossible to reemploy Mr.

Wixom then it follows that the officer/director pay would decrease. Accordingly,

Mr. Wixom was entitled to ask questions about officer/director pay. As such,

IMCO should be compelled to answer the salary data question.

4. This Court should sanction Defendants.

Federal courts have the authority to sanction litigants for discovery abuses.

Chambers v. NASCO, Inc. 501 U.S. 32, 45-46 (1991); In re Matter of Yagman,

796 F.2d 1165, 1187 (9th Cir. 1986). "Rule 37 sanctions must be applied

diligently both 'to penalize those whose conduct may be deemed to warrant such a

sanction, [and] to deter those who might be tempted to such conduct in the

absence of such a deterrent.'" Nat'l Hockey League v. Metro. Hockey Club, 427

U.S. 639, 643 (1976). A “district court has great latitude in imposing sanctions for

discovery abuse.” Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th

Cir.1996).

Mr. Wixom spent thousands of dollars and expended hours of time to



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expose Ms. Imhof’s dishonesty19

- - - dishonesty that denied plaintiff successes at

summary judgment (defense now stipulates to the timely reemployment prong).

Now that discovery is closed Mr. Wixom will need to spend more time and

resources to obtain evidence to which Defendants’ denied by failing to present a

knowledgeable witness. As such, the Court should grant the motion to compel

and (a) hold Ms. Imhof in contempt for submitting the misleading declaration (b)

strike defendants' changed circumstances USERRA defense, and (c) award

attorneys’ fees and costs under. Fed. R. Civ. P. 37(d)(3).

IV. CONCLUSION

Plaintiff's motion should be granted for the above reasons.

DATED this 15th day of July 2013.

s/ Matthew Z. Crotty

Matthew Z. Crotty (WSBA #39284)

Crotty and Son Law Firm, PLLC

421 West Riverside, Suite 1005

Spokane, WA 99201-0300

Telephone: (509) 850 7011

19 Decl. Jarrard at 1-28, Decl. Mitchell at 30-37.



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CERTIFICATE OF SERVICE

I hereby certify that on July 15, 2013 I caused the forgoing to be

electronically filed with the Clerk of the Court using the CM/ECF system, which

sent notification of such filing to the following:

1) James Bernard King, Email: [email protected]

2) Christopher Joseph Kerley, Email: [email protected]

LAW OFFICE OF THOMAS G. JARRARD, PLLC

s/ Thomas G. Jarrard

Thomas G. Jarrard (WSBA #39774)

Law Office of Thomas G. Jarrard PLLC


Spokane, WA 99203

Telephone: 425-239-7290

Facsimile: 509-326-2932


Case 2:12-cv-00413-LRS Document 75-1 Filed 07/15/13












DECLARATION OF THOMAS G. JARRARD-13




































































































































































































Declaration of Robert Mitchell and Plaintiff's Motion to Compel and for Sanctions-17






























[PROPOSED] ORDER ON PLAINTIFF'S MOTION TO COMPEL AND SANCTIONS - 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

LYLE WIXOM,

Plaintiff,

v.

IMCO GENERAL CONSTRUCTION,

INC., a Washington Corporation;

FRANK IMHOF, an individual,

Defendants.

Case No. CV-12-413-LRS

[PROPOSED] ORDER ON

PLAINTIFF'S MOTION TO

COMPEL AND SANCTIONS

Before the Court is Plaintiff Lyle Wixom’s Motion to Compel and

Sanctions. Being fully informed based on the arguments presented in the motion

and response, the pleadings on file, and any other relevant matter, the Court

hereby GRANTS the motion as follows:

Defendants’ USERRA reemployment affirmative defense (38 U.S.C. §

4312(d)(1)(A) is stricken, Ms. Imhof is in contempt; Defendants are ordered to

pay Mr. Wixom the attorneys’ fees and costs associated with conducting the June

28, 2013 30(b)(6) deposition and bringing the motion for sanctions; and

Defendants are Ordered to produce the IMCO officer/director salary data

requested at that deposition.

DONE IN OPEN COURT this _____ day of ____________, 2013.

_______________________________

LONNY R. SUKO

United States District Court Judge


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