UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Ralph Holder

v. Civil No. 06-cv-221-JD

Laurie Axinn Gienapp

O R D E R

Ralph Holder, proceeding pro se, moves for reconsideration

of the summary judgment entered in favor of Laurie Axinn Gienapp

on March 28, 2007. He also moves for sanctions against Gienapp

based on alleged misconduct during a deposition taken on March

27, 2007. Gienapp opposes both motions and requests an award of

expenses, including attorneys' fees, incurred in responding to

the motion for sanctions.

I. Motion for Reconsideration

Holder brought claims against Gienapp, his former counsel,

alleging that her representation of him during his divorce

proceeding and custody dispute violated federal and state law. 

The court granted Gienapp's motion for summary judgment on all

claims because Holder failed to show that any triable issue

existed to support his claims. 

Holder's motion for reconsideration is far from clear but

appears to challenge that part of the order that dismissed his

Case 1:06-cv-00221-JD Document 29 Filed 05/23/07 Page 1 of 6
1Gienapp also argues that Holder's motion is untimely

because the case is closed. When appropriate, however, the

district court has "jurisdiction to impose sanctions irrespective

of the status of the underlying case because the imposition of

sanctions is an issue collateral to and independent from the

underlying case." Schlaifer Nance & Co., Inc. v. Estate of

Warhol, 194 F.3d 323, 333 (2d Cir. 1999).

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legal malpractice claim because he lacked an expert witness to

support his claim. The court is satisfied that summary judgment

was properly entered and finds no grounds for reconsidering that

result.

II. Motion for Sanctions

Holder moves for sanctions against counsel who represented

Gienapp in this case, Attorney Ralph Suozzo, alleging that Suozzo

improperly instructed Gienapp not to answer questions during a

deposition held on March 27, 2007. Gienapp objects to the motion

and provides a copy of the deposition transcript with a detailed

analysis of the objections made during the depositions.1 Holder

failed to cite any part of the deposition where Suozzo instructed

Gienapp not to answer his question and failed to reply to

Gienapp's objection, which details the objections that were made. 

In her objection, Gienapp demonstrates that Suozzo did not

instruct her not to answer Holder's questions. Instead, Suozzo

objected to the form of some of Holder's questions, and then

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Gienapp answered. Lacking any guidance from Holder, Gienapp

surmises that his motion is based on the exchange at the end of

the deposition when Holder asked: "Are you not in violation of

professional rules of conduct regarding confidentiality between

attorney client privilege?" Suozzo objected without explanation

or comment. Holder responded, before Gienapp could answer his

question, "This is over," and the deposition ended. 

Holder has moved for sanctions without having complied with

the requirements of the rules. "A party, upon reasonable notice

to other parties and all persons affected thereby, may apply for

an order compelling . . . discovery." Fed. R. Civ. P. 37(a). 

"When taking a deposition on oral examination, the proponent of

the question may complete or adjourn the examination before

applying for an order." Fed. R. Civ. P. 37(a)(2)(B). If a

deponent refuses to answer the question or questions "after being

directed to do so by the court . . . , the failure may be

considered a contempt of that court." Fed. R. Civ. P. 37(b)(1). 

Rule 37(b)(2) provides appropriate sanctions.

Because Holder did not apply for an order to compel

discovery, he cannot move for sanctions. Even if his motion were

deemed to seek an order to compel, Holder fails to show that

Suozzo made any improper objections during the deposition. Being

a pro se litigant, he may have misunderstood the nature of

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2Gienapp includes copies of two emails her counsel received

from Holder on March 29, 2007, the day after summary judgment was

entered against Holder to show that Holder's filings are not

being made in good faith. The first, with the subject

"Redemption," states: "Let your client know this is not over. 

I'll have my vindication." The second, sent about a half hour

later without a subject heading states: "Have you ever heard of

the phrase; "what I can't do by fair means, I'll do by foul."

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Suozzo's objections. His questions demonstrate his lack of

understanding of appropriate subject matter for a deposition in

this case. Holder's misunderstanding, of course, is not a basis

for compelling additional discovery. 

The motion is denied.

III. Gienapp's Request for Expenses

Gienapp asks, pursuant to Federal Rule of Civil Procedure

37(a)(4)(B), that she be awarded her reasonable expenses incurred

in responding to Holder's motion for sanctions. She also asks

that Holder be ordered not to file any motions seeking to compel

further testimony.2 Holder failed to respond to Gienapp's

requests.

Rule 37(a)(4)(B) provides:

If the motion [to compel discovery] is denied, the

court may enter any protective order authorized under

Rule 26(c) and shall, after affording an opportunity to

be heard, require the moving party . . . to pay to the

party or deponent who opposed the motion the reasonable

expenses incurred in opposing the motion, including

attorney's fees, unless the court finds that the making

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of the motion was substantially justified or that other

circumstances make an award of expenses unjust.

Holder's motion, albeit improperly seeking sanctions instead of

to compel discovery, is denied. Therefore, Rule 37(a)(4)(B)

applies here, mandating an award of expenses unless the court

finds substantial justification for the motion or that such an

award would not be justified. The burden is on Holder to

persuade the court not to award expenses under Rule 37(a)(4)(B). 

As Holder's motion, even if deemed to be a motion to compel

further deposition discovery, is denied, he is thereby precluded

from moving again for the same relief. The court will not

entertain any motion Holder files seeking to compel discovery

related to the March 27 deposition. No further discovery of any

kind will be allowed in this closed case.

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Conclusion

For the foregoing reasons, Holder's motions for

reconsideration and for sanctions (document nos. 25 and 26) are

denied.

Holder shall file a memorandum on or before June 5, 2007, to

show cause why an award to Gienapp of her reasonable expenses,

incurred in responding to his motion for sanctions, would not be

appropriate, failing which the court will award Gienapp

reasonable expenses. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 23, 2007

cc: Robert J. Consavage, Esquire

Ralph Suozzo, Esquire

Ralph Holder, pro se 

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