The opinion of the court was delivered by: John D. Holschuh, Judge United States District Court
MEMORANDUM OPINION & ORDER
After their real property was rezoned by the Village of Obetz, Plaintiffs filed suit seeking declaratory relief, compensatory and punitive damages and a writ of mandamus to compel the Village to initiate appropriation proceedings. This matter is currently before the Court on numerous pending motions: (1) Plaintiffs' motion for partial summary judgment (Record at 24); (2) Defendants' motion to strike Plaintiffs' motion for partial summary judgment (Record at 29); (3) Defendants' motion for partial summary judgment (Record at 30); (4) Defendants' motion for sanctions (Record at 34); (5) Defendants' motion to dismiss Counts II, III, and IV of Plaintiffs' Complaint (Record at 42); (6) Defendants' motion to strike Plaintiffs' objection to Magistrate Judge Kemp's order (Record at 45); (7) Defendants' motion to strike Charles Porter's affidavit (Record at 46); (8) Plaintiffs' objection to Magistrate Judge Kemp's orders (Record at 47); (9) Defendants' motion to strike Plaintiffs' memorandum in opposition to the motion for sanctions (Record at 51); and (10) Plaintiffs' motion for leave to reply to motion for sanctions instanter (Record at 52).
I. Background and Procedural History
Plaintiffs Roger Anderson and Richard Freeman each own a parcel of real property on Pine Drive in Obetz, Ohio. On October 21, 2002, the Obetz Village Council enacted Ordinance No. 91-02, which rezoned Plaintiffs' property, and other contiguous property, from Commercial or Light Industrial to Community Facilities District. (Ex. A to Mem. in Opp'n to Pls.' Mot. Partial Summ. J.). This new classification allows the property to be used only for government, civic, recreational, and community facilities.
Plaintiffs allege that the property was rezoned without their knowledge or consent, and that they did not discover the reclassification until October of 2004. Plaintiffs first filed suit in November of 2004, but voluntarily dismissed the case without prejudice in response to Defendants' motion for involuntary dismissal based on failure to prosecute. In June of 2005, Plaintiffs filed a second suit in the Franklin County Court of Common Pleas; it was removed to federal court. Defendants include the Village of Obetz, Obetz council members Patty Altevogt, Bonnie Wiley, Mike Sullivan, Kandi Pulley, Sheila Henderson, and James Triplett, former Obetz mayor Louise Crabtree, and Obetz Chief of Police Dana Russell.
Plaintiffs assert five causes of action. Count I alleges that the zoning classification is invalid because Defendants failed to provide the required 30-day notice of the hearing on the proposed reclassification. Count II alleges that the zoning reclassification constitutes a "taking" under the United States and Ohio Constitutions. Count III alleges that the reclassification constitutes a temporary taking. Count IV alleges fraud. Count V alleges a violation of Roger Anderson's Fourth Amendment rights based on a warrantless search of his property in April of 2005. Plaintiffs seek declaratory relief as well as damages. They also seek a writ of mandamus to compel Defendants to commence appropriation proceedings.
II. Plaintiffs' Objections to Magistrate Judge Kemp's Order Denying
Plaintiffs' Motions to Extend Discovery The discovery deadline in this case was April 28, 2006. On March 31, 2006, Plaintiffs moved to extend the discovery deadline so that they could explore facts concerning a search of Plaintiff Freeman's property by police officers on or about March 23, 2006, and determine whether an additional cause of action existed. Before the court was able to rule on that motion, Plaintiffs filed a second motion to extend the discovery deadline, claiming that Defendants had failed to provide requested documents related to the rezoning and to the search of Plaintiff Anderson's property in April of 2005.
On June 26, 2006, Magistrate Judge Kemp issued an Order denying both motions. He found that Plaintiffs had failed to establish that any documents were improperly withheld, and had not demonstrated the exercise of due diligence with respect to efforts to obtain the documents. With respect to discovery related to the "alleged illegal search of the Roger Anderson property in March of 2006," Magistrate Judge Kemp found that because there was no claim or defense concerning that particular search, the requested discovery was not relevant and there was no good cause to reopen discovery.
On July 6, 2006, Plaintiffs filed certain exhibits, purportedly in response to Magistrate Judge Kemp's Order, but failed to file any objections. Defendants responded with a motion to strike. (Record at 45). The Court considers that motion moot because two days later, Plaintiffs filed the objections; Defendants then filed a memorandum in opposition. Because Magistrate Judge Kemp's Order denying Plaintiffs' motions to extend discovery deadlines concerned a nondispositive matter, the court can modify it or set it aside only if it is "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a). Plaintiffs raise two objections to Magistrate Judge Kemp's June 26, 2006 Order, neither of which has merit.
First, Plaintiffs argue that, in finding that discovery related to the search of Roger Anderson's property was irrelevant, Magistrate Judge Kemp apparently overlooked Count V of the complaint, in which Anderson asserts a Fourth Amendment claim based on the allegedly illegal search of his property. Defendants note that Magistrate Judge Kemp's reference to the search of Roger Anderson's property in March of 2006 was clearly inadvertent. Magistrate Judge Kemp obviously meant to state that discovery related to the search of Richard Freeman's property in March of 2006 was irrelevant. He ruled on this issue in response to Plaintiffs' first motion for an extension of the discovery deadline, in which they requested additional time to explore the facts surrounding the allegation that "reports made by Plaintiff Richard Freeman that officers of the Obetz Police Department may have created an additional cause of action by unlawfully searching his property on or about Thursday March 23rd, 2006." While the Order does contain a clerical error, the error is obvious and easily corrected by substituting the proper plaintiff's name. The Court finds that Magistrate Judge Kemp correctly determined that because the discovery deadline had passed and motions for summary judgment were already pending, no good cause existed to extend the discovery deadline to permit Plaintiffs to explore an additional cause of action based on the search of Freeman's property.
Second, Plaintiffs argue that they are still entitled to the names of the officers who searched Anderson's property in April of 2005, and documents showing that ten or more parcels of land were rezoned in October of 2002. Plaintiffs contend that they have requested this information through discovery and through public records requests, but have not yet received it.
In his June 26, 2006 Order, Magistrate Judge Kemp noted that Defendants submitted affidavits demonstrating that the requested documents have been available to Plaintiffs for quite some time, and that Plaintiffs submitted no affidavits or other evidence to the contrary. He concluded that because Plaintiffs had failed to demonstrate the exercise of due diligence, no good cause existed to extend the discovery deadlines. There is absolutely no basis in the record to support a finding that this holding was clearly erroneous or contrary to law.
For these reasons, Plaintiffs' objections (Record at 47) to Magistrate Judge Kemp's June 26, 2006 Order are overruled.
III. Defendants' Motion for Sanctions for Failure to Appear at Depositions
On June 22, 2006, pursuant to Federal Rule of Civil Procedure 37(d), Defendants moved for sanctions against Plaintiffs for failure to appear at their depositions on April 25, 2006. The rule states, in pertinent part:
If a party . . . fails (1) to appear before the officer who is to take the deposition, after being served with proper notice, . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just . . . In lieu of any order, or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(d) (emphasis added). Defendants request either that they be awarded $962.83 in attorney fees and costs and an order requiring Plaintiffs to appear for their depositions or, in the alternative, that the Court dismiss Plaintiffs' action with prejudice. Because Plaintiffs have failed to show that their failure to appear at the depositions was substantially justified, and because no circumstances exist that would make an award of expenses unjust, the Court grants Defendants' motion in part.
Plaintiffs waited nearly three months to respond to Defendants' motion for sanctions. On September 19, 2006, Plaintiffs filed several exhibits related to the depositions but no accompanying memorandum. The following day, Defendants moved to strike the exhibits, noting that they were not timely filed and contained no memorandum in support as required by S.D. Ohio Civ. R. 7.2(a)(1). The Court agrees that the exhibits were improperly filed and orders Document 50 stricken from the record.
On September 21, 2006, Plaintiffs requested leave to file a response instanter. Their attorney stated his failure to respond sooner had been an oversight. His father had been in poor health and had then passed away, and he had been busy moving his mother from Florida to Ohio. He admitted that this was no excuse, but claimed that Defendants would not be prejudiced by the delay. Defendants objected to Plaintiffs' request, noting that during this same time period, Plaintiffs' counsel had found time to file several other documents, including his own motion for summary judgment. Because the Court prefers to rule on the merits of Defendants' motion, the Court will give Plaintiffs' counsel the benefit of the doubt and grant his motion for leave to file a memorandum in opposition to the motion for sanctions instanter.
As noted earlier, the discovery deadline in this case was set for April 28, 2006. On April 10, 2006, Defendants filed Notices to take Plaintiffs' depositions on April 18, 2006. (Ex. A to Mot. for Sanctions). On April 16, 2006, Plaintiffs' counsel responded that he would be out of town on that date. He suggested the depositions be rescheduled for the week of May 8, 2006 or May 15, 2006. (Ex. B to Mot. for Sanctions). The next day, Defendants' counsel responded via fax and e-mail. She noted that the suggested dates were beyond the discovery deadline. She stated that she would be available to take Plaintiffs' depositions any date between April 19th and April 27th, and asked Plaintiffs' counsel to advise her of their availability. (Ex. C to Mot. for Sanctions). On April 19, 2006, because Plaintiffs' counsel had not yet responded, Defendants' counsel filed Revised Notices to take Plaintiffs' depositions at 10:00 a.m. and 1:00 p.m. on April 25th. These notices were served on Plaintiffs' counsel that same day through the Court's electronic filing system. Defendants' counsel also mailed a hard copy of the notices, along with a cover letter stating that unless she received a court order quashing the notices, she planned to see Plaintiffs' counsel and his clients on the 25th. (Ex. D to Mot. for Sanctions).
When neither Plaintiffs nor their attorney appeared for the scheduled depositions, Defendants placed the following evidence on the record. Jessica Philemond, an attorney at the law firm representing Defendants, testified that on the afternoon of April 24th, she received a phone call from Doug Browell, the solicitor for the Village of Obetz. Plaintiffs' counsel was in Browell's office and wanted to confirm that Plaintiffs' depositions were going forward on April 25th. Plaintiffs' counsel told Philemond that his clients were prepared to appear and that he would make them available on that date. (Ex. F to Mot. for Sanctions). However, at 9:42 a.m. on the morning of the depositions, Defendants' counsel received a fax from Plaintiffs' counsel. It read:
I only received your letter of April 19 regarding the depositions of Roger Anderson and Richard Freeman yesterday. I will unable [sic] to make it today, however I have cleared out my schedule for Thursday, April 27. Unless I hear otherwise, I will assume this will work out for you. (Ex. G to Mot. for Sanctions).
Plaintiffs' memorandum in opposition to the motion for sanctions fails to explain why they failed to appear for their properly-noticed depositions on April 25th. In the Court's view, that memorandum is significant for what it does not say. Plaintiffs' counsel does not deny that he failed to respond to defense counsel's April 17th correspondence about rescheduling the depositions. Neither does he deny that on April 19th he received electronic notice that his clients would be deposed on April 25th. He says only that he did not get the hard copy of the notices via regular mail until April 24th. Even then, Plaintiffs' counsel offers absolutely no excuse for waiting until the 25th, just 18 minutes before the depositions were scheduled to begin, to notify Defendants that he had a conflict.
Plaintiffs argue only that: (1) it would have been common courtesy for Defendants' counsel to consult with Plaintiffs' counsel prior to rescheduling the depositions; and (2) that Defendants failed to exhaust extra-judicial means for resolving discovery disputes as required by S.D. Ohio Civ. R. 37.1 prior to filing the motion for sanctions.*fn1 The Court rejects both of these arguments. Counsel for Defendants did consult Plaintiffs' counsel about dates for rescheduling the depositions, but he failed to respond. Because the discovery deadline was fast approaching, she understandably picked a new date and sent revised notices. Moreover, while S.D. Ohio Civ. R. 37.1 does generally require parties to exhaust extra-judicial means for resolving discovery disputes prior to seeking court intervention, that requirement is often waived when, as here, any such attempts would be futile. Because it is unlikely that, absent a court order, Plaintiffs would have agreed to the sanctions sought by Defendants, Defendants were not required to exhaust extra-judicial means prior to filing their motion.
The Court finds that, under the circumstances presented here, sanctions are clearly warranted. The only question is what sanctions are appropriate. In the Court's view, dismissal of Plaintiffs' case with prejudice is too harsh. However, an award of reasonable expenses incurred as a result of Plaintiffs' failure to appear at their scheduled depositions is warranted. Because Plaintiffs' absence appears to be attributable solely to Plaintiffs' counsel, the Court awards those sanctions against him alone.
In support of the motion for sanctions, Defendants submitted Ms. Philemond's affidavit. Attached to the affidavit are billing records indicating that, as a result of Plaintiffs' failure to appear, Defendants incurred $891.50 in attorney fees and $71.33 in court reporter fees. (Philemond Aff.; Exs. 1-3). Defendants therefore seek a total of $962.83 in expenses. The Court finds that this is excessive. According to the billing statements, in addition to the 2.5 hours billed by the attorneys on the day of the depositions, Philemond spent another 5.9 hours in May and June of 2006 drafting the motion for sanctions. In light of the fact that the motion for sanctions is only five-and-a-half pages long, the Court finds that this is an unreasonable amount of time. The Court finds that an award of $350.00 in attorney fees is reasonable, along with $71.33 in court reporter fees. Plaintiffs' counsel is therefore ordered to pay $421.33 to Defendants within 30 days of the date of this Order.
As an additional sanction, Defendants request that they be given another opportunity to depose Plaintiffs even though the discovery deadline has now passed. The Court denies this request. After Plaintiffs failed to appear at their depositions on April 25th, Defendants made no effort, prior to the discovery cutoff, to compel the depositions or to extend the discovery deadline. ...