Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 1298

M o t i o n Picture Association of America v. CrystalTech Web Hosting Inc.

D o c . 1298

DENNEEN L. PETERSON, P.C. P o s t Office Box 11277 T u c s o n , Arizona 85734 (5 2 0 ) 399-1663 D e n n e en L. Peterson S B A No. 7087 A tto rn e y for Plaintiff IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF ARIZONA L U C Y SULLIVAN, individually, ) ) P la in tif f , ) ) vs. ) ) CARL L. CASH and ROBBI J. CASH, ) husband and wife; et al., ) ) Defendants. ) ____)

No. CIV 05 469 TUC RCC REPLY TO DEFENDANT GWIN'S OBJECTION TO PLAINTIFF'S AFFIDAVIT REGARDING ATTORNEY'S FEES AND COSTS REGARDING DEPOSITIONS

P lain tiff Lucy Sullivan replies to Defendant Robbi Cash Gwin's Objection to P la in tif f 's [Counsel's] Affidavit and hereby requests that this Court grant her the atto rn e y's fees and costs for Defendant Robbie Cash Gwin's failure to appear for her deposition, set for March 5, 2007. Plaintiff requests that this Court require Defendant a n d /o r her counsel to pay all of the reasonable expenses, including attorney's fees, c a u se d by Defendant's failure. These expenses are mandatory and there is no ju s tif ic a tio n which excuses them. Rule 37(d), Federal Rules of Civil Procedure, provides that if a party fails to a p p e ar for deposition, the Court may make such orders as are just, and it may take any

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a c tio n under Rule 37(b)(2)(A), (B), and ©, including entering default. The court shall re q u ire the party failing to act or the attorney for that party or both to pay the expenses a n d attorney's fees, caused by the failure, unless the court finds that the failure was s u b s ta n tia lly justified or that other circumstances make an award of expenses unjust. There has been no attempt to justify the failure of the March 5 deposition. It was only after not hearing back from defense counsel's office after multiple a tte m p ts to get a response, that on February 22, 2007, Plaintiff's counsel sent a notice of d e p o sitio n for Robbi Gwin setting the deposition for March 5, 2007. That notice was e lec tro n ica lly delivered via ECF. On February 27, 2007, counsel for Robbi Gwin a d v is e d Plaintiff's counsel that Ms. Gwin would be available for deposition in Tucson o n March 21, 2007, a date that Plaintiff's counsel had advised defense counsel that she w a s not available. Plaintiff's counsel advised defense counsel by return e-mail that she w a s not available that week and reminded defense counsel that Plaintiff's counsel could d o Ms. Cash Gwin's deposition on March 5, 2007­the date it was noticed­and a list of o th e r dates. On March 1, 2007 Plaintiff's counsel followed up with defense counsel via e -m a il about Robbi Cash Gwin's deposition and reminded him that her deposition was n o tice d for March 5, 2007. Also on March 1, 2007, Plaintiff's counsel spoke with Isab el from defense counsel's office and reminded her that Robbi Cash Gwin's d ep o sitio n was set for Monday, March 5, 2007 at 2:30 p.m. Isabel assured Plaintiff's c o u n s e l that she would stay on top of this matter and advise Plaintiff's counsel if Ms. C a sh Gwin would not be attending the March 5 deposition. Plaintiff's counsel did not

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h e a r from defense counsel's office after that call. Payment of Expenses, Including Attorney's Fees D e f e n d a n t claims that Plaintiff's claim for fees and costs is grossly inflated. However, Plaintiff's counsel discounted her claim for time spent that actually was u s e f u l to the deposition which finally took place. Plaintiff's counsel claims only time th a t was necessitated by the need to reschedule the deposition, such as repetition of the p re p a ra tio n since time passed from the time of the first attempted deposition and the a c tu a l deposition. Plaintiff's counsel had to refresh her memory as to the subjects she w is h e d to cover in Ms. Gwin's deposition. Plaintiff's counsel paid for the court reporter at the deposition that finally took p la c e and for the failed deposition. Plaintiff's counsel spent time traveling from her o f f ic e in the desert south of Tucson near Pima Mine Road and Avenida Kaye to the c o u rt reporter's office near Fort Lowell and Campbell. Plaintiff's counsel spent time w a itin g for Defendant to appear for the deposition and has not been reimbursed for th o s e expenses or the loss of time and inconvenience. Defendant or her counsel have n o t offered to reimburse for any time or expenses for the failed deposition. Rule 37(d) m a n d a t e s payment of expenses and fees when a party fails to appear for her deposition. Belated compliance with discovery orders does not preclude the imposition of s a n c tio n s . North Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9 th C ir. 1986). Submitting to a deposition does not purge a prior failure to appear for d e p o s itio n . Henry v. Gill Indus., Inc., 983 F.2d 943, 947 (9 th Cir. 1993).

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In National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 9 6 S.Ct. 2778 (1976), the United States Supreme Court explained that sanctions must be a v a ila b le , not merely to penalize, but to deter those who might be tempted to such c o n d u c t in the absence of such deterrent. In the present case, Defendant ignored the deposition notice. The result is u n ju s tif ie d expense, delay and prejudice. This obstruction diverted attention from other m a tte rs for counsel and the Court­in this and other cases. The Ninth Circuit has a f f irm e d sanctions against defense counsel for failing to appear at a deposition absent a v a lid protective order, even though he informed plaintiff that he did not plan to attend. Telluride Mgmt. Solutions, Inc. v. Telluride Inv. Group, 55 F.3d 463, 466-67 (9 th Cir. 1 9 9 5 ). This Court may give weight to Defendant Robbi Cash Gwin's lack of cooperation w h e n she evaded service, failed to cooperate with coordination of required deposition d a tes (including failure to call counsel as promised if the deposition was not going to o c c u r) and failed to appear for a required noticed deposition. Plaintiff's counsel hoped to depose Ms. Gwin and was prepared to do so. Defendant claims that it is not reasonable to award time for preparation for a deposition w h e n such preparation would have inured to Plaintiff's benefit at both depositions. Plaintiff's counsel spent many hours preparing for Ms. Gwin's deposition, but claims o n ly time for that preparation both before the "missed" deposition and the deposition th a t actually occurred. Plaintiff's counsel claims only the preparation time that was

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" w a s te d " or repeated because of Ms. Gwin's failure to appear. Plaintiff's counsel tried to set the deposition of Robbi Gwin with coordination w ith defense counsel's office. That did not work so Plaintiff's counsel noticed the d e p o sitio n . No one notified Plaintiff's counsel, as promised, that Ms. Gwin would not a p p e ar for the noticed deposition. Plaintiff's counsel assumed that defense counsel and d e f en d a n t would comply with the notice and either appear or let Plaintiff's counsel k n o w that Ms. Gwin would not be appearing. Defense counsel Henry Jacobs' assistant p ro m is e d that she would let Ms. Peterson know if Ms. Gwin would not appear. Plaintiff's counsel heard nothing else. There is nothing that defense counsel presents th a t excuses the mandatory imposition of those expenses under Rule 37(d). "The burden of establishing substantial justification is on the party being s a n c tio n e d (emphasis added)." Telluride Mgmt. Solutions, Inc. v. Telluride Inv. Group, 5 5 F.3d 463, 466 (9 th Cir. 1995). "[S]ubstantially justified" does not mean people could d if f er as to [the appropriateness of the contested action.]'" Pierce v. Underwood, 487 U .S . 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988). Rule 37(d) requires the c o u rt to order defendant, her attorney, or both, to pay the reasonable expenses, including a tto rn e y's fees, caused by that failure. P la in tif f 's counsel had to attend the deposition or risk being sanctioned herself for f a ilu re to appear if defendant appeared with counsel. In fixing the amount of the s a n c tio n , the Court may consider a party's entire course of conduct during the p ro c e e d in g s . Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d

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7 6 6 , 772 (9 th Cir. 1995). P la in tif f 's counsel attended the scheduled deposition. Plaintiff's counsel also had to prepare the motion and reply. Defendant claims that Plaintiff's mileage estimate is incorrect. Plaintiff's c o u n s e l's office is near Pima Mine Road and Avenida Kaye southwest of Tucson. Plaintiff's counsel keeps track of mileage related to business matters at the time of the tra v e l and records that mileage for each case. Plaintiff's counsel double-checked her m ile a g e at MapQuest. According to MapQuest, mileage from Plaintiff's counsel's o f f ic e to the court reporter's office is 26.4 miles. Therefore, the mileage given for the f a ile d Gwin deposition is slightly understated from the actual mileage. Defendant claims that where fees or costs incurred in conducting the first d e p o sitio n proceeding were not duplicated in the second proceeding, such fees and costs s h o u ld not be awarded as such award would constitute a windfall and would not be re m e d ia l in nature. Plaintiff claims only that time and those expenses that were incurred a s a result of the failure of Ms. Gwin to appear for her first scheduled deposition. Some p re p a ra tio n had to be repeated in order to refresh Plaintiff's counsel's memory as to d e ta ils of Ms. Gwin's proposed question areas as did arrangements for the deposition its e lf . Defendant claims that the noticed deposition proceeding occurred while D e f en d a n t Gwin was out of town. Plaintiff's counsel was never advised before March 5 that Ms. Gwin was out of town or was going to be out of town. Defendant also claims

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th a t Plaintiff did not need to file the motion for sanctions. It took filing the motion for s a n c tio n s to get the cooperation that Plaintiff's counsel had sought for months. Neither Plaintiff nor her counsel are to blame here. Defendant or her counsel s e e m s to miss the point that Plaintiff's counsel followed the rules and more and that D e f en d a n t and/or her counsel ignored the notice of deposition. Plaintiff's counsel tried to informally schedule the deposition of Robbi Gwin to meet the schedule of Ms. Gwin a n d all counsel. When that informal attempt at cooperation was not successful, P la in tif f 's counsel followed the rules and set the deposition according to notice. Plaintiff's counsel called and wrote to defense counsel about this deposition setting. Neither Defendant nor her counsel followed the rules. Defense counsel's office p ro m is e d to advise Plaintiff's counsel if Ms. Gwin could not attend. Plaintiff's counsel co o p era ted voluntarily and informally more than once regarding resetting Ms. Gwin's d e p o sitio n and was willing to continue to cooperate in the setting of depositions on m u tu a lly agreeable dates, but couldn't get more response regarding this setting. No one filed a motion for protective order to let Plaintiff's counsel know that she shouldn't tra v e l to the court reporter's office. This requested award is required to compensate P la in t if f for the expenses she incurred by having her attorney prepare for and miss d e p o s in g Robbi Cash Gwin. Defendant claims that Plaintiff has attempted to utilize the discovery sanction ru les as a sword, rather than as a shield ; "refusing to back down and accept reasonable a c co m m o d a tio n for expenses incurred due to Defendant's error." (p. 5, Defendant

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G w in 's Objection). Defendant never offered any accommodation or offered to pay any e x p e n se s for her failure to appear at her properly noticed deposition. Plaintiff and her c o u n s e l incurred expenses for the failure to appear and Plaintiff's counsel wasted time tryin g to set up and actually take the deposition. Defendant claims that the time for the motion for sanctions should not be awarded. P lain tiff 's counsel tried all means available to her other than visiting defense counsel's o f f ic e in person to try to get the deposition to take place. Letters, e-mails, telephone c a lls and notices of deposition did not work to accomplish the depositions. It took the m o tio n for sanctions to finally get some cooperation to take a very basic deposition in th is case. Defendant claims that there has to be a good faith attempt to secure disclosure w ith o u t court intervention pursuant to Rule 37(a)(2)(A), Federal Rules of Civil P r o c e d u re . This rule does not apply to this situation. The rule cited by Defendant sp e c if ica lly refers to disclosure required by Rule 26(a). The rule regarding failure to ap p ea r for deposition is Rule 37(d)(1). There is no requirement under this rule for a g o o d faith attempt to secure "disclosure" or a rescheduling of the deposition before a sk in g for the Court's intervention. In any event, Plaintiff's counsel made several good fa ith attempts for months to informally arrange convenient times for Ms. Gwin's d e p o sitio n before she decided to formally notice the deposition, which is allowed and c o n te m p la te d by the rules. Defendant next claims that Rule 34(a)(4)© provides that if the motion is granted

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in part and denied in part, the court may apportion the reasonable expenses among the p a rtie s and persons in a just manner. However, as mentioned above, this rule does not a p p ly to a party's failure to appear for deposition which is governed by Rule 37(d)(1). Defendant claims somehow that Plaintiff acted unjustifiably in bringing this motion w ith o u t attempting to resolve the matter without Court intervention. Defendant claims also that Plaintiff was unjustified in seeking the remedies of striking the defendant's a n sw e r and entering default judgment. Defendant claims that Plaintiff does not appear b e f o re this Court with clean hands. Defendant claims that this should mitigate any aw ard of fees and costs. This is not supported by any law that applies to a party's f a ilu re to appear for a deposition. Plaintiff was not required by the rules to attempt to resolve the matter without C o u rt intervention. Even if it were required, Plaintiff's counsel suspects this would h a v e been futile as had all the prior attempts to set the deposition informally. Rule 3 7 (d ) allows a party seeking the deposition to request the striking of the answer and e n te rin g default. Just because the Court decided not to grant that request does not mean th a t Plaintiff came to the Court with "unclean hands." Plaintiff did what she was re q u ire d to do according to the rules and courtesy to try to set Ms. Gwin's deposition. When she received no cooperation in return, she had no choice but to notice the d e p o sitio n of Ms. Gwin. When Ms. Gwin did not appear for her deposition, Plaintiff h a d every right under the rules to seek default and expenses. There is no law applicable to this situation that requires Plaintiff to absorb any fees or costs caused by the failure of

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M s . Gwin to appear. To the contrary, the applicable rule mandates imposition of s a n c tio n s against the party or attorney for the party who failed to appear for the d e p o s itio n . Defendant claims that the only reason the Motion for Sanctions was litigated was b e c au s e Plaintiff demanded penalties that were ultimately refused by the Court. The M o tio n for Sanctions had to be filed to try to move this case toward resolution. Plaintiff's counsel had been trying to depose Ms. Gwin for four months or more. Plaintiff's counsel had not been able to make any progress toward that end. This was a f ter Ms. Gwin evaded service, requiring Plaintiff's counsel to incur expenses to try to s e rv e r her. Plaintiff's counsel had to seek permission from the Court to obtain service b y alternative means. The Court also decided that Plaintiff was entitled to fees and c o sts for that delay and inconvenience, but has yet to rule on the amount of the fees and c o sts . The purpose of the Motion for Sanctions, if default was not granted, was to o b tain reimbursement of the fees and costs wasted in trying to get Ms. Gwin's d e p o sitio n and, as explained in National Hockey League v. Metropolitan Hockey Club, In c ., 427 U.S. 639, 643, 96 S.Ct. 2778 (1976), sanctions must be available, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter th o s e who might be tempted to such conduct in the absence of such deterrent. Plaintiff's counsel hopes that sanctions in this instance will help deter delaying and o b s tru c tiv e tactics in the future in this and other cases. Defendant claims that she has always been willing to confess $289.50 (p. 6,

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D e f en d a n t Gwin's Objection). However, Plaintiff's counsel is not aware that D e f e n d a n t has been willing to confess to anything in this matter. Further, that amount is n o t appropriate in of the conduct of Defendant and/or her counsel in this situation and th e actual fees and costs incurred because of the failure. For the reasons set forth above, Plaintiff respectfully requests that this Court enter an order against Defendant Robbi Gwin and/or her counsel that she or he pay the re a s o n a b le expenses and attorney's fees for her failure to appear at her deposition. RESPECTFULLY SUBMITTED THIS 23rd day of July 2007.

DENNEEN L. PETERSON, P.C.

/s Denneen L Peterson Denneen L. Peterson A tto rn e y for Plaintiff

C o p ie s of the foregoing e le c tro n ic a lly delivered this 23rd day of Ju ly 2007 to: Thomas Jacobs L A W OFFICES OF THOMAS JACOBS 2 7 1 North Stone Avenue T u c so n , Arizona 85701 A tto rn e y for Carl Cash and Rosa Beltran H e n ry Jacobs L A W OFFICES OF HENRY JACOBS 2 7 1 North Stone Avenue T u c so n , Arizona 85701 A tto rn e y for Robbi Cash (Gwin)

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