Iglesias v. Goodyear, City of
Filing
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ORDER granting 93 defendant's application for attorney's fees and costs. Defendant is awarded sanctions in the amount of $2,337.75. Plaintiff and his lawyer are jointly and severally liable for payment. Signed by Judge Frederick J Martone on 9/20/12.(TLJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Julio Iglesias,
Plaintiff,
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vs.
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City of Goodyear,
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Defendant.
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No. CV 11-01891-PHX-FJM
ORDER
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The court has before it defendant's application for attorneys' fees and costs (doc. 93).
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The court granted defendant's motion for sanctions on August 24, 2012, instructing defendant
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to file an application for fees and an itemized statement of fees and expenses and granting
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plaintiff ten days from the filing of defendant's application to respond (doc. 90). Plaintiff did
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not respond and the time for doing so has expired.
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Pursuant to Rule 37(d)(3), Fed. R. Civ. P., "the court must require the party failing to
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act, the attorney advising that party, or both to pay the reasonable expenses, including
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attorney's fees, caused by the failure [of a party to appear for his deposition], unless the
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failure was substantially justified or other circumstances make an award of expenses unjust."
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The burden of showing substantial justification is on the party being sanctioned. Falstaff
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Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir.1983). A finding of bad
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faith is not required before sanctioning a party or his lawyer. Hyde & Drath v. Baker, 24
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F.3d 1162, 1171 (9th Cir. 1994). Sanctions may be imposed even for negligent behavior.
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Lew v. Kona Hosp., 754 F.2d 1420, 1426-27 (9th Cir. 1985).
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Defendant requests $2,337.75 in attorneys' fees and costs incurred by the failure of
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plaintiff and plaintiff's counsel to appear for plaintiff's deposition. The hourly rate and hours
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worked are both reasonable. Plaintiff and his lawyer make no argument that his failure to
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appear was justified or that an award of fees and expenses is unjust.
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Plaintiff states in his response to defendant's motion for sanctions that "Defendant was
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fully aware that the deposition had been cancelled and did not incur any additional cost as
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a result" (doc. 65). This is unsupported by the record. When plaintiff called defendant's
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lawyer directly to ask whether his deposition was happening the following day, the lawyer
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explained that she could not speak with a represented party and directed him to his own
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lawyer. Upon notifying plaintiff's lawyer of this call, he said that he believed his client
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planned to show up for the deposition but that he would not be there. When asked for
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clarification, his answer was unclear. He did not seek to postpone the deposition by
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requesting a delay from defendant's lawyer or by filing a motion with this court.
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Accordingly, plaintiff's lawyer should be jointly responsible for sanctions.
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IT IS ORDERED GRANTING defendant's application for attorney's fees and costs
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(doc. 93). Defendant is awarded sanctions in the amount of $2,337.75. Plaintiff and his
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lawyer are jointly and severally liable for payment.
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DATED this 20th day of September, 2012.
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