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As of: June 19, 2015 10:17 PM EDT

Howard v. Offshore Liftboats

United States District Court for the Eastern District of Louisiana
June 18, 2015, Decided; June 18, 2015, Filed
CIVIL ACTION NO. 13-4811; 13-6407; 14-1188 SECTION E (5)
Reporter
2015 U.S. Dist. LEXIS 79223

CALVIN HOWARD, ET AL., Plaintiff VERSUS

OFFSHORE LIFTBOATS, LLC, ET AL., Defendants.
APPLIES TO: ALL CASES

Core Terms
depositions, sanctions, magistrate judge, attorneys, notice,
clearly erroneous, judges decision, argues
Counsel:
[*1] For Calvin Howard, Plaintiff
(2:13-cv-04811-SM-MBN): Stephen Michael Chouest,
LEAD ATTORNEY, J. Rand Smith, Jr., Chouest Law Firm,
Metairie, LA; Eric Jason Allen, Ryan Zehl, Zehl &
Associates, PC, Houston, TX; Kevin C. Haynes, PRO HAC
VICE, Fitts Zehl, LLP (Post Oak Blvd), Houston, TX.
For Raymond Howard, 14-1188, Consol Plaintiff
(2:13-cv-04811-SM-MBN): John D. Sileo, LEAD
ATTORNEY, John D. Sileo, Attorney at Law, New Orleans,
LA; Frank A. Silvestri, John Paul Massicot, M. Damien
Savoie, Silvestri & Massicot, New Orleans, LA.
For K & K Offshore, LLC, as Owner Pro Hac Vice and
Operator of the M/V Contender, praying for exoneration
from and/or limitation of liability - 13-6407, Consol
Petitioner (2:13-cv-04811-SM-MBN): Anthony John Staines,
LEAD ATTORNEY, Corey Patrick Parenton, James A.
Crouch, Jr., Jeff Daboval Peuler, Staines & Eppling
(Metairie), Metairie, LA.
For
Offshore
Liftboats,
LLC,
Defendant
(2:13-cv-04811-SM-MBN): Robert Seth Reich, LEAD
ATTORNEY, Lawrence R. Plunkett, Jr., Michael T.
Wawrzycki, Reich, Album & Plunkett, LLC, Metairie, LA.
For
K
&
K
Offshore,
LLC,
Defendant
(2:13-cv-04811-SM-MBN): Anthony John Staines, LEAD
ATTORNEY, Corey Patrick Parenton, James A. Crouch, Jr.,
[*2] Jeff Daboval Peuler, Staines & Eppling (Metairie),
Metairie, LA.

For P&M Marine, LLC, Atlantic Specialty Insurance

Company, Markel American Insurance Company, Procentury
Insurance Company, Navigators Insurance Company, United
States Fire Insurance Company, Lloyds Underwriters, Torus
Insurance
Company
UK
Limited,
Defendants
(2:13-cv-04811-SM-MBN): Jeff Daboval Peuler, Staines &
Eppling (Metairie), Metairie, LA.
For Certain Underwriters at Lloyds of London, and/or,
Defendant (2:13-cv-04811-SM-MBN): Jon Daniel Picou,
LEAD ATTORNEY, Cory Thomas Stuart, Wilson Lewis
Maloz, III, Larzelere, Picou, Wells, Simpson, Lonero, LLC,
Metairie, LA.
For Offshore Liftboats, LLC, 14-1188, Consol Defendant
(2:13-cv-04811-SM-MBN): Lawrence R. Plunkett, Jr.,
Michael T. Wawrzycki, Reich, Album & Plunkett, LLC,
Metairie, LA.
For K&K Offshore, LLC, 14-1188, Consol Defendant
(2:13-cv-04811-SM-MBN): James A. Crouch, Jr., Staines &
Eppling (Metairie), Metairie, LA.
For Offshore Liftboats, LLC, Counter Claimant
(2:13-cv-04811-SM-MBN): Robert Seth Reich, LEAD
ATTORNEY, Lawrence R. Plunkett, Jr., Michael T.
Wawrzycki, Reich, Album & Plunkett, LLC, Metairie, LA.
For K & K Offshore, LLC, Counter Defendant
(2:13-cv-04811-SM-MBN): [*3] Anthony John Staines,
LEAD ATTORNEY, Corey Patrick Parenton, James A.
Crouch, Jr., Jeff Daboval Peuler, Staines & Eppling
(Metairie), Metairie, LA.
For Offshore Liftboats, LLC, 13-6407, Consol Claimant
(2:13-cv-04811-SM-MBN): Robert Seth Reich, LEAD
ATTORNEY, Lawrence R. Plunkett, Jr., Michael T.
Wawrzycki, Reich, Album & Plunkett, LLC, Metairie, LA.
For Diagnostic Management Affiliates Preferred Provider
Organization, L.L.C., Movant (2:13-cv-04811-SM-MBN):

Courtesy of TenThousandDepositions.com

Page 2 of 4
2015 U.S. Dist. LEXIS 79223, *4
Normand Francis Pizza, LEAD ATTORNEY, Andrew Robert
Capitelli, Milling Benson Woodward, LLP (Mandeville),
Mandeville, LA.
For Calvin Howard, 13-6407, Consol Movant
(2:13-cv-04811-SM-MBN): Stephen Michael Chouest,
LEAD ATTORNEY, J. Rand Smith, Jr., Chouest Law Firm,
Metairie, LA; Kevin C. Haynes, PRO HAC VICE, Fitts
Zehl, LLP (Post Oak Blvd), Houston, TX.
For Offshore Liftboats, LLC, Cross Claimant
(2:13-cv-04811-SM-MBN): Robert Seth Reich, LEAD
ATTORNEY, Lawrence R. Plunkett, Jr., Michael T.
Wawrzycki, Reich, Album & Plunkett, LLC, Metairie, LA.
For
Bay
South,
Inc.,
Cross
Claimant
(2:13-cv-04811-SM-MBN): Randell E. Treadaway, LEAD
ATTORNEY, Brad D. Ferrand, Brett M. Bollinger, Michelle
Marie ODaniels, Zaunbrecher Treadaway, LLC (Covington),
[*4]
Covington, LA.
For Offshore Liftboats, LLC, Cross Defendant
(2:13-cv-04811-SM-MBN): Robert Seth Reich, LEAD
ATTORNEY, Lawrence R. Plunkett, Jr., Michael T.
Wawrzycki, Reich, Album & Plunkett, LLC, Metairie, LA.

For Offshore Liftboats, LLC, per doc #50 in 13-4811,

Claimant (2:13-cv-06407-SM-MBN): Robert Seth Reich,
LEAD ATTORNEY, Reich, Album & Plunkett, LLC,
Metairie, LA; Christy L. Johnson, Brown Sims, PC (New
Orleans), New Orleans, LA.
For Calvin Howard, Movant (2:13-cv-06407-SM-MBN):
[*5]
Stephen Michael Chouest, LEAD ATTORNEY,
J. Rand Smith, Jr., Chouest Law Firm, Metairie, LA.
For Raymond Howard, Plaintiff (2:14-cv-01188-SM-MBN):
John D. Sileo, LEAD ATTORNEY, John D. Sileo, Attorney
at Law, New Orleans, LA; Frank A. Silvestri, John Paul
Massicot, M. Damien Savoie, Silvestri & Massicot, New
Orleans, LA.
For
K&K
Offshore,
LLC,
Defendant
(2:14-cv-01188-SM-MBN): James A. Crouch, Jr., Staines &
Eppling (Metairie), Metairie, LA.
Judges: SUSIE MORGAN, UNITED STATES DISTRICT
JUDGE.
Opinion by: SUSIE MORGAN

Opinion
For Certain Underwriters at Lloyds of London, and/or,
Cross Defendant (2:13-cv-04811-SM-MBN): Jon Daniel
Picou, LEAD ATTORNEY, Cory Thomas Stuart, Wilson
Lewis Maloz, III, Larzelere, Picou, Wells, Simpson, Lonero,
LLC, Metairie, LA.
For Tammany Oil & Gas, LLC, Cross Claimant
(2:13-cv-04811-SM-MBN): Bradley Joseph Schlotterer,
LEAD ATTORNEY, Dylan Tuggle Thriffiley, Sean T.
McLaughlin, Kean Miller LLP (New Orleans), New Orleans,
LA.
For K&K Offshore, LLC, as Owner Pro Hac Vice and
Operator of the M/V Contender, praying for exoneration
from and/or limitation of liability, Petitioner
(2:13-cv-06407-SM-MBN): Anthony John Staines, LEAD
ATTORNEY, James A. Crouch, Jr., Jeff Daboval Peuler,
Staines & Eppling (Metairie), Metairie, LA.

ORDER
On March 4, 2015, the magistrate judge granted Plaintiffs
motion for sanctions1 and sanctioned Mr. Robert
Reichcounsel for Offshore Liftboats, LLCfor his
conduct at the depositions of Calvin Howard, Raymond
Howard, and Sylvester Richardson.2 The magistrate judge
fined Mr. Reich $1,500 and prohibited him from participating
in future depositions in these consolidated cases. Offshore
has appealed the ruling to this Court. For the following
reasons, the ruling is affirmed.
With the consent of the presiding district judge, a magistrate
judge may adjudicate non-dispositive pre-trial motions.3
The magistrate judge is afforded broad discretion in resolving
such motions.4 The district [*6] judge may reverse only if

R. Doc. 178

R. Doc. 200.

28 U.S.C. 636(b)(1)(A).

McCallon v. BP Am. Prod. Co., Nos. 05-0597, C/W 05-0700, 2006 WL 3246886, at *2 (E.D. La. Nov.8, 2006).

James Patrick Garrity

Page 3 of 4
2015 U.S. Dist. LEXIS 79223, *6
the ruling is clearly erroneous or contrary to law.5 In order
to meet this high standard, the district judge must be left
with a definite and firm conviction that a mistake has been
committed.6 Mr. Reich argues the magistrate judges ruling
should be reversed for five reasons.

to be present at oral argument on the motion for sanctions.

In anticipation of that hearing, the magistrate ordered the
parties to provide him with the videos of all three depositions.
Under these circumstances, the magistrate judges decision
to impose sanctions was consistent with the mandates of
procedural due process.11

I. No Due Process Violation

Mr. Reich also argues the magistrate judge erred by imposing

non-monetary sanctions because Plaintiffs motion only
requested monetary sanctions. Both the factual and legal
predicate of this argument are mistaken. Regarding the
former, Plaintiffs motion requested monetary relief as well
as whatever the Court deems sufficient to deter similar
conduct in the future.12 Regarding the latter, Mr. Reich
cites no authority for the proposition that a court may only
impose the sanctions specifically requested by the moving
party. The magistrate judges decision to impose
nonmonetary sanctions was not clearly erroneous or contrary
to law.

First, he contends the ruling violated his right to

constitutional due process. According to Mr. Reich,
Plaintiffs motion for sanctions was limited to (1) a complaint
that Offshore provided late notice of Mr. Richardsons
deposition and imposed undue time limitations on the
deposition, and (2) a request for costs.7 Because the
magistrate judge also considered Mr. Reichs conduct in
depositions other than Mr. Richardsons and imposed relief
beyond what was specifically requested, Mr. Reich contends
he did not receive sufficient notice regarding the potential
bases for sanctions.
The Court finds Mr. Reich received adequate notice that his
conduct at Mr. Richardsons deposition and at the Howard
Plaintiffs depositions was in question. As a preliminary
[*7] matter, Plaintiffs motion was not limited to an attack
on late notice and time limitations regarding Mr.
Richardsons deposition. The motion also took issue with
Mr. Reichs conduct at the deposition, specifically, lobb[ing]
speaking objections that appear on approximately 63 pages
of the [deposition] transcript and consume 740 lines of
text.8 Additionally, the motion complained at length of Mr.
Reichs conduct at the depositions of Calvin Howard and
Raymond Howard.9 The transcripts of all three depositions
were attached to the motion.10 Notice that the ruling on the
motion for sanctions would focus on the three depositions
was also given at a hearing on various motions to quash on
February 11, 2015. During that hearing, the magistrate
judge noted counsels inability to behave professionally at
depositions and ordered all attorneys, including Mr. Reich,

II. Referral to Disciplinary Committee Not Required

Second, Mr. Reich argues that prohibiting him from
participating in depositions in this case is tantamount to
disqualification [*9] from the practice of law and requires a
hearing before the Lawyer Disciplinary Committee of the
Eastern District of Louisiana. Mr. Reich cites no authority in
support of this argument and relies solely on his own
warped interpretation of the Rules for Lawyer Disciplinary
Enforcement of the Eastern District of Louisiana. But Mr.
Reich ignores Rule 1.4, which provides in pertinent part that
[n]othing contained in these Rules restricts this court in
exercising the power to maintain control over proceedings.
There is nothing in the Disciplinary Rules purporting to
limit a judges ability to impose sanctions specifically
authorized by the Federal Rules of Civil Procedure. The
magistrate judges failure to refer this matter to the
Disciplinary Committee was not clearly erroneous or
contrary to law.

28 U.S.C. 636(b)(1)(A); Fed. R. Civ. P. 72(a).

Yelton v. PHI, Inc., 284 F.R.D. 374, 376 (E.D. La. 2012) (internal quotation marks omitted).

See R. Doc. 200-1, p. 2-3.

R. Doc. 178-1, p. 3.

[*8] See id. at p. 4-7.

10

See R. Doc. 178-6, 178-7, 178-8.

11

Even if the magistrate judge erred by failing to give Mr. Reich adequate notice, that error was harmless. Mr. Reich appealed the
magistrate judges decision to this Court. At Mr. Reichs request, the Court granted oral argument. Thus, Mr. Reich was given ample
opportunity to contest the bases for the magistrate judges sanctions.
12

R. Doc. 178-1, p. 10.

James Patrick Garrity

Page 4 of 4
2015 U.S. Dist. LEXIS 79223, *9
III. No Misinterpretation of Mr. Reichs Conduct at the
Depositions

to sanction Mr. Reich under Rule 30(d)(2) was neither

clearly erroneous nor contrary to law.

Third, Mr. Reich argues the magistrate judge incorrectly

interpreted the deposition transcripts.13 In support of this
argument, Mr. Reich cherry-picks certain excerpts and
provides a revisionist history of what they really mean. The
Court has reviewed the transcripts in detail and is appalled
by Mr. Reichs strong-arm tactics and utter disregard [*10]
for civility. The magistrate judges interpretation of the
deposition transcripts was not clearly erroneous.

V. No Prejudice to Offshore [*11]

IV. The Sanctions Imposed are Authorized by the Federal

Rules
Fourth, Mr. Reich contends the rule under which he was
sanctionedRule 30(d)(2)does not authorize the type of
sanction imposed in this case. Rule 30(d)(2) authorizes a
federal court to impose an appropriate sanctionincluding
the reasonable expenses and attorneys fees incurred by any
partyon a person who impedes, delays, or frustrates the
fair examination of the deponent. As demonstrated by the
plain wording of the Rule, sanctions are not limited to
expenses and attorneys fees. Use of the word including
demonstrates expenses and attorneys fees are but one
example of an appropriate sanction authorized by the
Rule. The non-monetary sanctions ordered in this case are
appropriate, because previous monetary sanctions against
Mr. Reich for deposition misconduct have clearly failed to
yield adequate deterrence.14 The magistrate judges decision

Finally, Mr. Reich argues the sanction unduly prejudices

Offshore by depriving Offshore of its counsel of choice. But
Mr. Reich is only prohibited from participating in
depositions. He is free to argue motions, attend status
conferences, and represent his client at trial. Moreover,
excluding Mr. Reich, Offshore has enrolled five attorneys in
this case. Surely some combination of those attorneys can
handle the remaining depositions in this case. Thus, any
prejudice to Offshore is minimal and, more importantly,
significantly outweighed by the importance of sending a
clear message to Mr. Reich that his rude and obstructionist
behavior in depositions cannot continue.
CONCLUSION
For the reasons previously stated;
IT IS ORDERED that the magistrate judges decision is
AFFIRMED.
New Orleans, Louisiana, this 18th day of June, 2015.
/s/ Susie Morgan
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

13

R. Doc. 200-1, p. 8.

14

See R. Doc. 193, p. 5-6 (detailing the sanctions levied against Mr. Reich).

James Patrick Garrity