Croomes v. Stream Global Services - AZ Incorporated

Filing 57

ORDER granting 47 Motion for Attorney Fees in the amount of $1,507.50. (See document for full details). Signed by Judge James A Teilborg on 4/12/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tracee Croomes,
Plaintiff,

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vs.

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Stream Global Services - AZ, Inc.,
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Defendant.
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No. CV11-0141-PHX-JAT
ORDER

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Pending before the Court is Defendant’s Motion for Attorneys’ Fees (Doc. 47). The

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Court now rules on the motion.

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I.

BACKGROUND

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Plaintiff pro se Tracey Croomes filed this employment discrimination case against

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Defendant. On November 29, 2011, Defendant served Plaintiff with its Notice of Deposition

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of Plaintiff Tracee Croomes. (Doc. 21). The deposition was scheduled for December 28,

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2011 at 9 a.m., at the offices of Farhang and Medcoff, PLLC in Phoenix, Arizona. (Doc. 22

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at 2). On December 21, 2011, Defendant mailed a letter to Plaintiff stating that Defendant

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had not yet received responses to its discovery requests and reminding Plaintiff of her

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upcoming deposition. (Id.) Defendant also called Plaintiff to remind her of the deposition,

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but was unable to reach Plaintiff. (Id. at 3).

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Plaintiff did not appear for her deposition on December 28, 2011, and contacted

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Defendant’s counsel at approximately 4:30 p.m. on December 28, 2011 stating that she

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needed to reschedule the deposition. Id. Plaintiff alleged that she confused the dates and

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misread the Defendant’s letters. (Docs. 30 & 33 at 1). Defendant subsequently moved for

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dismissal, or in the alternative an award of attorneys’ fees, as a sanction for Plaintiff’s

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noncompliance with discovery requests. (Doc. 22).

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This Court found that Plaintiff’s failure to appear at her deposition violated Rule

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37(d)(1)(A) of the Federal Rules of Civil Procedure, and ordered Defendant to submit a

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properly supported motion for attorneys’ fees and costs pursuant to Local Rule of Civil

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Procedure 54.2. (Doc. 43). On March 21, 2012, Defendant submitted its motion for attorneys’

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fees. (Doc. 47). On March 29, 2012, Plaintiff filed two responses. (Docs. 53 and 55).1

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On March 29, 2012, this Court ruled on Defendant’s Motion for Summary Judgment.

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The Court determined that Plaintiff had no standing to bring this case because the claim

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properly belonged to her bankruptcy estate, and ordered the case dismissed unless the

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bankruptcy trustee intervened. (Doc. 51).

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II.

ATTORNEYS’ FEES AND COSTS

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A. Legal Standard

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A party sanctioned under Rule 37(d)(3) is required to pay “the reasonable expenses,

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including attorney’s fees,” caused by that party’s failure to appear at her own deposition.

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FED.R.CIV.P. 37(d)(3); see also Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985)

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(upholding payment of “attorneys’ fees and costs” as reasonable expenses under Rule 37).

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In assessing the reasonableness of a sanctions award based upon attorneys’ fees and costs,

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a court must inquire into the reasonableness of the attorneys’ fees and the costs. Brown v.

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Baden (In re Yagman), 796 F.2d 1165, 1184-85 (9th Cir. 1986); see also Mirch v. Frank, 266

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F. App’x 586, 588, 2008 WL 341429, at *2 (9th Cir. 2008) (“[r]easonableness is the

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benchmark for sanctions based on attorneys’ fees”).
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Attorneys’ Fees

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The Court assumes that Doc. 53 is Plaintiff’s response, as Doc. 55 is a duplicate of
an earlier filing in this case.
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The Ninth Circuit applies a two-part “lodestar” approach to assess whether a requested

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award of attorneys’ fees is reasonable. Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 622 (9th

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Cir. 1993); see also Stokes v. Microsemi Corp., No. CV02-1689-PHX-LOA, 2003 WL

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22114276, at *2 (D. Ariz. Sept. 10, 2003) (applying the lodestar methodology to Rule 37

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sanctions); Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., No. C06-03359JF(RS), 2009

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WL 3617786, at *1 (N.D. Cal. Oct. 29, 2009) (“[w]hen, as here, attorneys’ fees are being

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awarded pursuant to the discovery sanctions provisions of Federal Rule of Civil Procedure

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37, courts generally use the ‘lodestar’ approach to calculate the proper fee amounts.”). First,

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the court must determine “the presumptive lodestar figure by multiplying the number of

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hours reasonably expended on the litigation by the reasonable hourly rate.” Intel, 6 F.3d at

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622 (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

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The lodestar figure is presumptively reasonable, but in the second step of the lodestar

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approach, rare and exceptional circumstances can be taken into account for an enhancement

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of the lodestar figure. These circumstances are (1) when the hourly rate does not represent

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the attorneys’ true market value (court can calculate by linking the attorneys’ ability to the

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prevailing market rate), (2) when the litigation includes an extraordinary outlay of expenses

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and is exceptionally protracted (court can calculate by, for example, applying a standard rate

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of interest to the qualifying outlays and expenses), and (3) when there is an exceptional delay

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in the payment of fees (court can calculate by basing the award on current hourly rates or by

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adjusting the fee based on historical rates to reflect the present value). Perdue v. Kenny A.

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ex rel. Winn, __ U.S. __, 130 S.Ct. 1662, 1674-75 (2010). Nevertheless, “[a] strong

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presumption exists that the lodestar figure represents a reasonable fee, and therefore, it

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should only be enhanced or reduced in rare and exceptional cases.” Fischer v. SJB-P.D. Inc.,

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214 F.3d 1115, 1119 n.4 (9th Cir. 2000) (quoting Pennsylvania v. Del. Valley Citizens’

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Council for Clean Air, 478 U.S. 546, 565 (1986)) (internal quotation marks omitted).

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2.

Costs

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Costs are not considered in determining the reasonableness of attorneys’ fees under

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the lodestar approach. Rouse v. Law Offices of Rory Clark, 603 F.3d 699, 704-705 (9th Cir.
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2010) (“costs . . . are often fixed by statute or local rule and bear no direct causal relationship

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to the reasonableness of attorneys’ fees”). Accordingly, a court must separately evaluate the

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reasonableness of requested costs.

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Federal law governs the award of costs, In re Merrill Lynch Relocation Mgmt., Inc.,

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812 F.2d 1116, 1120 n.2 (9th Cir. 1987) (citation omitted), and their recovery is permitted

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under Federal Rule of Civil Procedure 54(d). FED.R.CIV.P. 54(d)(1) (“Unless a federal

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statute, these rules, or a court order provides otherwise, costs—other than attorney’s

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fees—should be allowed to the prevailing party.”); see also 28 U.S.C. § 1920 (identifying

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taxable costs).

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B.

Local Rule 54.2

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The district courts are free to adopt local rules regarding the filing of motions for

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attorneys’ fees and expenses. See Lytle v. Carl, 382 F.3d 978, 989 (9th Cir. 2004) (citing

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White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 453-54 (1982)); see also Grove v. Wells

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Fargo Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010) (quoting United States v. Warren,

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601 F.2d 471, 474 (9th Cir. 1979) (“Only in rare cases will we question the exercise of

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discretion in connection with the application of local rules”).

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In the District of Arizona, motions for attorneys’ fees and costs are governed by Local

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Rule of Civil Procedure 54.2.2 Such motions must (1) specify the amount of fees and costs

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sought; (2) discuss the moving party’s eligibility and entitlement for the requested expenses;

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(3) discuss the reasonableness of the requested award; (4) provide supporting documentation;

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and (5) give an itemized account of the time expended and expenses incurred. LRCiv. 54.2.

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A motion for attorneys’ fees and expenses must “cite the applicable statutory or

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contractual authority upon which the movant seeks an award of attorneys’ fees and related

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non-taxable expenses.” LRCiv 54.2(c)(1). “If the moving party claims entitlement to fees for

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preparing the motion and memorandum for award of attorneys’ fees and related non-taxable

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The Court ordered Defendant to submit its motion for attorneys’ fees and costs under
Rule 37 according to Local Rule 54.2. (Doc. 43 at 8).
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expenses, such party also must cite the applicable legal authority supporting such specific

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request.” LRCiv 54.2(c)(2). A motion must also discuss the reasonableness of the requested

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award, using the factors provided in the Local Rule, such as the time required, novelty of the

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questions presented, the customary fee charged, and so forth. LRCiv 54.2(c)(3).

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Additionally, a motion must be supported by sufficient documentation. Local Rule 54

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requires the moving counsel to certify that a good faith effort has been made to resolve any

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disputes between the parties regarding attorneys’ fees and costs. LRCiv 54.2(d)(1). Such a

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statement must give the date of a personal consultation between the parties, the names of the

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participating attorneys, and the outcome. Id. The attorneys’ fees requested must be supported

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by a copy of the fee agreement, a task-based itemized statement of fees, and an affidavit of

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moving counsel which attests to the reasonableness of the fees. LRCiv 54.2(d)(1)-(5).

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Similarly, the requested expenses must be itemized and particularly described. LRCiv

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54.2(e)(3).

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C.

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Defendant moves for Plaintiff to pay $8,476.50 in attorneys’ fees and expenses

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incurred as a result of Plaintiff’s failure to appear at her deposition. (Doc. 47 at 1). In support

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of its motion, Defendant has attached a memorandum of points and authorities, an affidavit

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of Defendant’s counsel, and itemized records of incurred expenses. As an initial matter, the

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Court finds that Defendant’s motion meets the requirements of Local Rule 54.2(b)(1),

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54.2(b)(2), and 54.2(c)(1). The motion’s attached memorandum specifies that the authority

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on which Defendant seeks the award of fees and costs is this Court’s March 8, 2012 order,

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and identifies the amount requested as $8,476.50. (Doc. 47 at 2).

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Discussion

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Attorneys’ fees

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Defendant requests $7,732.50 in attorneys’ fees, all of which was billed by

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Defendant’s lead counsel, a partner in Nutter, McClennen & Fish, LLP, who is the chair of

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the firm’s litigation department and charges an hourly rate of $495, which increased to $510

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effective January 1, 2012. (Doc. 47-1 at 2-3). This attorney is lead counsel for Defendant, but

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because she is based in Boston, she was required to travel to Phoenix to take Plaintiff’s
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deposition. Counsel reports in her affidavit that, in connection with Plaintiff’s failure to

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appear at her deposition, counsel spent 5 hours traveling from Phoenix to Boston; 0.5 hours

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appearing at the deposition; 5 hours returning to Boston; 2.5 hours researching and drafting

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the motion to dismiss; and 2.5 hours drafting the motion for attorneys’ fees, including the

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supporting memorandum and affidavit. (Id.)

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The Court will not approve of Defendant’s request for fees incurred in preparing the

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motion for fees and costs. Local Rule 54.2(c)(2) states that “[i]f the moving party claims

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entitlement to fees for preparing the motion and memorandum for award of attorneys’ fees

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and related non-taxable expenses, such party also must cite the applicable legal authority

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supporting such specific request.” LRCiv 54.2(c)(2). Defendant has not cited any legal

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authority in support of its claim for counsel’s time spent in preparing Defendant’s motion for

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fees and costs, and this Court did not state in its March 8, 2010 order (Doc. 43) that

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Defendant was entitled to such fees. Accordingly, Defendant is not entitled to payment for

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the 2.5 hours of attorney time spent in preparing its motion for fees and costs.

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Nor is Defendant entitled to the fees incurred for counsel’s 10 hours of travel time

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between Phoenix and Boston. Defendant acknowledges that Local Rule 54.2(e)(2)(D) states

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that “[o]rdinarily air travel time should not be charged” but argues that under Johnson v.

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Credit Int’l, 257 F. App’x 8 (9th Cir. 2007), Defendant is entitled to have its own attorney

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attend the deposition, regardless of whether travel is involved. In Johnson, the district court

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denied recovery for the travel time of the plaintiff’s attorney, who had to travel from Chicago

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to San Francisco for the plaintiff’s deposition. 257 F. App’x at 10. The district court based

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its denial on the fact that the attorney “had not presented any reason why local counsel could

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not have attended the deposition.” Id. The court noted that “[i]f the travel time was

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reasonably expended, the travel costs should also be recoverable,” and remanded to the

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district court for further consideration. Id.

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As an unpublished opinion, Johnson is not precedent and thus is not binding upon this

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Court. See 9TH CIR.R. 36-3. More compellingly, Johnson did not involve a local rule similar

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to our Local Rule 54.2(e)(2)(D), which clearly states that travel time should not be charged
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unless services were performed during the travel time. LRCiv 54.2(e)(2)(D); see also Lytle,

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382 F.3d at 989 (upholding the validity of local rules). Defendant has not described any

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services that counsel performed during her travel to and from Boston. Therefore, Defendant

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is not entitled to payment for the 10 hours of attorney time spent in travel.

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Defendant is entitled to payment for the remaining time billed of 3 hours. Defendant

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has otherwise complied with Local Rule 54.2(c) and 54.2(d). The Court has carefully

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reviewed the billing records and determines that counsel’s itemized statement specifically

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identifies the work performed and its connection to Plaintiff’s deposition. Under the lodestar

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analysis, the Court first multiplies the hours reasonably expended by the reasonable hourly

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rate. Expending 0.5 hours at the deposition is reasonable in light of Plaintiff’s failure to

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appear, expending 1 hour in drafting a motion to dismiss is reasonable, and expending 1.5

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hours in researching the law and conferring with two parties regarding a motion is

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reasonable. An hourly rate of $495 (or $510) is reasonable for a partner of a large Boston law

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firm who is also the manager of the litigation department. The lodestar figure, using

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counsel’s corresponding hourly rates of $495 and $510, is $1,507.50. There is a “strong

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presumption” that this is a reasonable fee, and this is not a rare or exceptional case that

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justifies an adjustment. Fischer, 214 F.3d at 1119 n.4. Therefore, the Court finds that

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Defendant is entitled to $1,507.50 in attorneys’ fees.

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2.

Costs

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Defendant requests payment for $744 in costs incurred in connection with Plaintiff’s

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failure to appear at her deposition. (Doc. 47-1 at 3). Specifically, Defendant requests $439

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for counsel’s round-trip airfare from Boston to Phoenix, $157 for one night in a Phoenix

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hotel, and $148 for a deposition transcript. (Id.) In support of its request, Defendant has

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properly attached to its motion copies of receipts for each expense. See LRCiv 54(e)(3).

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Plaintiff does not challenge any of Defendant’s costs, but the Court will not award any costs

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to Defendant. Although there is no per se rule that financial indigency “will tilt against the

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imposition of Rule 37 sanctions,” see Bosworth v. Record Data of Md., Inc., 102 F.R.D. 518,

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521 (D.C. Md. 1984), the Court considers Plaintiff’s financial condition in determining the
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appropriate extent of sanctions. Plaintiff is experiencing, in her words, “extreme financial

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difficulties.” (Doc. 53 at 1). Accordingly, the Court will not grant Defendant’s motion as to

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costs.

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III.

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CONCLUSION
Defendant is entitled to payment for the $1,507.50 that it reasonably incurred in

attorneys’ fees in connection with Plaintiff’s deposition.

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Accordingly,

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IT IS ORDERED that Defendant’s Motion for Attorneys’ Fees (Doc. 47) is granted

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in the amount of $1,507.50.
DATED this 12th day of April, 2012.

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