The opinion
UNITED STATES DISTRICT
COURT EASTERN DISTRICT
OF LOUISIANA
DEREK BARDELL CIVIL ACTION
VERSUS NO. 20-3245
JEFFERSON PARISH SCHOOL BOARD SECTION "L" (1)
ORDER AND REASONS
Before the Court is Plaintiff Derek Bardell’s Motion for Appeal/Review of Magistrate
Judge Janis van Meerveld’s decision on Plaintiff’s prior Motion to Compel. R. Doc. 125.
Defendant Jefferson Parish School Board has filed a memorandum in opposition. R. Doc. 126.
CASE BACKGROUND
This case arises from the employment relationship between Plaintiff Derek Bardell and
Defendant Jefferson Parish School Board. R. Doc. 1. Plaintiff alleges that Defendant engaged in
employment discrimination, retaliation, harassment, and other charges because of his race as an
African American and his age. Id. at 3, 5-6. Plaintiff was hired by Jefferson Parish School Board
as a Dean of Student Services in 2007 and claims he was wrongfully demoted to a role as teacher
in March of 2011. Id. at 2. Plaintiff alleges that in doing so, Defendant reduced his pay, deducted
sick leave, and altered his retirement. Id. at 2. Plaintiff claims that over the course of ten years,
Defendant wrongfully denied him over 80 promotions or jobs for which he applied and instead
hired individuals other than African American males of lesser qualifications, including positions
as Executive Director, Assistant Principal, and Principal. Id. at 5; R. Doc. 34. Plaintiff further
claims he reported alleged illegal activity including his demotion, payment being taken away, and
employment file not being expunged, which resulted in Defendant’s adverse retaliation of denying
him these promotions. R. Doc. 1 at 5-6.
Plaintiff alleges (1) retaliation and (2) discrimination under Title VII of Civil Rights Act,
42 U.S.C. Section 2000 and Louisiana R.S. 23:01 et al., (3) harassment due in part to his race under
42 U.S.C. Section 2000 et. seq., (4) intentional infliction of emotional distress under La. C.C. art.
2315, (5) breach of employment contract by not removing derogatory comments and by reducing
his pay, and (6) age discrimination under Employment Act 29 U.S.C. 626(e). Id. at 5-7. Plaintiff
now seek back pay, front pay, non-pecuniary losses, past and future pecuniary losses, punitive
damages, attorney fees and costs, and other damages. Id. at 8.
Defendant generally denies Plaintiff’s allegations and asserts a total of sixteen defenses
including but not limited to: Plaintiff is barred by estoppel; Plaintiff failed to reasonably mitigate
damages and exhaust administrative remedies; Plaintiff is not entitled to the requested relief and
damages; Defendant has fully complied with all applicable laws and has not discriminated or
retaliated against Plaintiff; the alleged incidents and damages resulted solely from prior acts of the
Plaintiff; and the Equal Employment Opportunity Commission did not find that Defendant violated
any statute. R. Doc. 16 at 1-4.
Defendant filed a Motion to Dismiss for Failure to State a Claim, R. Doc. 75, which this
court denied on July 25, 2022, R. Doc. 84.
THE PRESENT MOTION
This Court’s review of Judge van Meerveld’s decision requires some background on the
motion on which Judge van Meerveld ruled. On September 20, 2022 Plaintiff filed a Motion for
Sanctions, to Compel, and for Extension of Time. R. Doc. 90. In that motion, Plaintiff’s counsel
argued that Defendant had not been compliant with the Plaintiff’s attempts to schedule
depositions, despite numerous attempts at contacting Defendant, and that Defendant’s late notice
that it would miss a deposition caused Plaintiff’s counsel to incur fees; Plaintiff also suggested
that Defendant has generally failed to produce documents and impeded discovery. Plaintiff asked
the Court to take disciplinary measures allowed under Rule 37 for the Defendant’s failure to take
part in the deposition.
Defendant filed a memorandum in opposition to that motion. R. Doc. 99. In its response,
Defendant contested Plaintiff’s version of events regarding the sanctions issue, suggesting that
Defendant’s counsel had attempted to work with Plaintiff’s counsel on scheduling and that he
sought to reschedule because everyone in his household had been ill. R. Doc. 99 at 2. With
regard to the Motion to Compel, Defendant argued that Plaintiff’s counsel “continuously refuses
to reissue and properly serve the subpoenas as ordered by the Magistrate.” Id. at 4.
On October 31, 2022, Judge van Meerveld ruled on the Plaintiff’s Motion for Sanctions
and to Compel. R. Doc. 124. Judge van Meerveld found “fault on both sides,” noting that it is
“disruptive” to re-schedule a deposition so close to its occurrence but that, in this instance, defense
counsel had been sick with COVID. Id. at 2. Judge van Meerveld found that it would be appropriate
for Defendant’s attorney to pay the rescheduling fee of $135. Id. at 3. She further ordered
Plaintiff’s counsel Anundra Martin to attend a one-hour professionalism CLE on November 17,
due to Ms. Martin’s “filing of this motion for sanctions, the tone of the attached communications,
and other conduct in this litigation demonstrat[ing] a troubling lack of professionalism[.] Id. at 4.
Judge van Meerveld noted that, since the deposition had already occurred, there was no discovery
to compel. Id.
On November 1, 2022, Plaintiff filed the present Motion. R. Doc. 125. Plaintiff argues
that the Defendant should be accountable for $5500, the “full loss” of rescheduling the
deposition, R. Doc. 125-1 at 2, and objects to the Magistrate Judge’s order that Plaintiff’s
counsel attend a professionalism seminar, arguing that it is Defendant’s counsel, rather than
Plaintiff’s attorney, who has engaged in “unprofessional behavior” that should be sanctioned by
the Court. Id. at 4.
In an opposition memo, Defendant argues that the bulk of the money sought by Plaintiff
in sanctions was from legal fees that resulted from the date that Plaintiff’s counsel chose;
Defendant also rejected Plaintiff’s characterization of Defendant’s counsel’s own behavior as
“misrepresentations and outright untruths.” R. Doc. 126.
LAW AND ANALYSIS
The standard of review for non-dispositive matters referred to a magistrate judge is
extremely deferential. A magistrate judge’s written order on such an issue must stand unless
“clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Castillo
v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). This standard has been applied within this circuit
when parties ask district courts to review the orders of magistrate judges regarding sanctions. See
REC Marine Logistics, LLC v. Richard, 2020 U.S. Dist. LEXIS 85606, *5. Therefore, Plaintiffs
must clear a high hurdle for this Court to grant the instant motion.
Plaintiffs cannot make the required showing. It is evident that Magistrate Judge van
Meerveld gave due consideration to Plaintiffs’ arguments before making her ruling. This Court
finds that Judge van Meerveld did not commit “clear error” when ordering the Defendant to
reimburse to Plaintiff’s counsel the $135 deposition fee; nor in ordering Plaintiff’s counsel to
attend a professionalism seminar. The Court finds no issue with the analysis that Judge van
Meerveld made of why $135 was appropriate rather than the $5500 award requested by Plaintiff:
First, there is no evidence that an expedited fee was paid—the transcript was produced
two weeks after the deposition, and the attached invoice reflects no extra fee for
expediting. Rec. Doc. 112-9. Second, considering that the deposition was rescheduled
only three days later, the court finds that any need to expedite the transcript in light of the
dispositive motion filing deadline would already have existed. Plaintiff also asks for the
costs counsel incurred to reschedule other matters—including purported lost hourly
fees—in order to hold the deposition on September 22. Because plaintiff agreed to this
date from among the alternatives offered, the court finds that defendant is not responsible
for those fees.
R. Doc. 124 at 3n.4.
Furthermore, it was not “clear error” for the Judge van Meerveld to order Plaintiffs counsel to
attend a seminar on professionalism in federal courts. In this motion, Plaintiff argues that “tone”
is not a violation of the Louisiana Professional Rule of Conduct. R. Doc. 125-1 at 3. But this is
not the central behavior undergirding Judge van Meerveld’s order that Plaintiff's counsel attend
a professionalism seminar. It is, rather, the filing of the motion for sanctions, in addition to filing
numerous other motions to compel without first correcting and reissuing subpoenas. The
Magistrate Judge’s conclusion that Plaintiff's counsel should attend a one-hour professionalism
seminar was not “clearly erroneous or contrary to law,” and this Court upholds the Magistrate
Judge’s order.
Signed in New Orleans, Louisiana this 16th day of November, 2022.
THE HONORABLE ELDON E. ato
UNITED STATES DISTRICT JUDGE