Kresich v. Metropolitan Life Insurance Company
Filing
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ORDER by Judge Maria-Elena James granting 29 Motion for Sanctions. (mejlc2S, COURT STAFF) (Filed on 3/31/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JOHN KRESICH,
Plaintiff,
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Case No. 15-cv-05801-MEJ
ORDER GRANTING PLAINTIFF’S
MOTION FOR SANCTIONS
v.
Re: Dkt. No. 29
METROPOLITAN LIFE INSURANCE
COMPANY,
United States District Court
Northern District of California
Defendant.
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INTRODUCTION
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Pending before the Court is Plaintiff John Kresich’s (“Plaintiff”) Motion for Sanctions
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pursuant to Federal Rule of Civil Procedure 30(g). Dkt. No. 29. Defendant Metropolitan Life
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Insurance Company (“Defendant”) filed an Opposition (Dkt. No. 31); Plaintiff did not file a reply.
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Having considered the parties’ positions, the record in this case, and the relevant legal authority,
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the Court GRANTS Plaintiff’s Motion for the following reasons.
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BACKGROUND
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On December 9, 2016, Defendant’s counsel James Castle mailed a Notice of Deposition of
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Abraham Boskovitz, M.D. to Plaintiff’s counsel, Eric Whitehead. Mot. at 2; see id., Ex. 1 (Notice
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of Deposition). The deposition was scheduled for January 5, 2017 at 8:30 a.m. in defense
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counsel’s office in Sacramento. Id. The day before, Whitehead attempted to contact Defendant’s
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three attorneys by phone and email; they did not respond. Mot. at 2.
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On January 5, 2017, Whitehead drove from San Francisco to Sacramento to attend the
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deposition. Id. Neither defense counsel nor the court reporter was present. Id. Whitehead again
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tried to contact Defendant’s attorneys. Id. at 2-3. At 9:00 a.m., defense counsel Royal Oakes
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notified Whitehead that the deposition had been cancelled. Id. at 3. Whitehead returned to San
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Francisco, completing a trip that consisted of 196 total miles and lasted 6.5 hours. Id. at 3. Oakes
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later confirmed they failed to notify Whitehead of the cancellation. Id., Ex. 2 (email from Oakes
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to Whitehead).
Plaintiff now seeks a total of $4,004.86 in sanctions: $3,900 for 6.5 hours of work at a
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billable rate of $600 per hour plus $104.86 for travel expenses. Id. at 4.
LEGAL STANDARD
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Under Federal Rule of Civil Procedure 30, “[a] party who, expecting a deposition to be
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taken, attends in person or by an attorney may recover reasonable expenses for attending,
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including attorney’s fees, if the noticing party failed to . . . attend and proceed with the
deposition.” Fed. R. Civ. P. 30(g). Discovery sanctions are appropriate when a party improperly
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United States District Court
Northern District of California
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and unilaterally cancels a noticed deposition. Plyley v. Grangaard, 2014 WL 1599930, at *4
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(N.D. Cal. Apr. 21, 2014); see also Luna Gaming-San Diego LLC v. Dorsey & Whitney, LLP,
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2009 WL 196325 (S.D. Cal. Jan. 27, 2009) (holding that it was the responsibility of counsel who
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noticed the depositions “to either appear and conduct the depositions or to notify all the interested
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parties of its intent not to conduct the depositions,” and failure to do so would result in
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compensation for opposition’s travel time and expenses (quoting Macrovision Corp. v. VSA Ltd.,
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1989 WL 69961 (D. Or. June 8, 1989))).
The Ninth Circuit has established that the appropriate method for calculating a reasonable
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fee award is the lodestar method of calculation, which multiplies the number of hours the
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prevailing party reasonably expended on the litigation by a reasonable hourly rate. Morales v.
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City of San Rafael, 96 F.3d 359, 363-364 (9th Cir. 1996). “In determining a reasonable hourly
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rate, the district court should be guided by the rate prevailing in the community for similar work
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performed by attorneys of comparable skill, experience, and reputation.” Ingram v. Oroudjian,
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647 F.3d 925, 928 (9th Cir. 2011). “The burden is on the fee applicant to produce satisfactory
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evidence of the relevant market rate” in addition to his own affidavits. Van Skike v. Director,
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Office of Workers’ Comp. Programs, 557 F.3d 1041, 1046 (9th Cir. 2009); Blum v. Stenson, 465
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U.S. 886, 896 n.11 (1984).
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//
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DISCUSSION
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Defendant concedes it “erred” when it “failed to advise Plaintiff’s counsel that the
deposition was being rescheduled.” Opp’n at 2. “Travel costs, travel time, and lodging are
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compensable in the form of sanctions where a party fails to appear at a deposition he has noticed.”
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Jones v. Lehigh Sw. Cement Co., 2014 WL 346619, at *6 (E.D. Cal. Jan. 30, 2014). However, the
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Court finds Plaintiff’s $600 per hour rate—unsupported by affidavit or declaration—is
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unreasonable for an attorney who, according to The State Bar of California, was admitted to the
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bar in 2014. See Attorney Search for The State Bar of California, http://www.calbar.ca.gov/
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(attorney search field for “Eric B. Whitehead”); Campbell v. Nat’l Passenger R.R. Corp., 718 F.
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Supp. 2d 1093, 1101 (N.D. Cal. Feb. 18, 2010) (rejecting counsel’s request for $400 per hour for
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United States District Court
Northern District of California
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services where counsel had three years of experience).
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Accordingly, the Court ORDERS Defendant to pay Plaintiff $2,500 for its failure to notify
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him of the January 5, 2017 deposition’s cancellation. This represents a rate of just under $400 per
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hour. Defendant also shall pay $104.86 for the travel expenses Plaintiff’s counsel incurred.
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Defendant shall pay Plaintiff no later than April 14, 2017.
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IT IS SO ORDERED.
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Dated: March 31, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge
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