Kresich v. Metropolitan Life Insurance Company

Filing 37

ORDER by Judge Maria-Elena James granting 29 Motion for Sanctions. (mejlc2S, COURT STAFF) (Filed on 3/31/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN KRESICH, Plaintiff, 8 9 10 11 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. 12 13 INTRODUCTION 14 Pending before the Court is Plaintiff John Kresich’s (“Plaintiff”) Motion for Sanctions 15 pursuant to Federal Rule of Civil Procedure 30(g). Dkt. No. 29. Defendant Metropolitan Life 16 Insurance Company (“Defendant”) filed an Opposition (Dkt. No. 31); Plaintiff did not file a reply. 17 Having considered the parties’ positions, the record in this case, and the relevant legal authority, 18 the Court GRANTS Plaintiff’s Motion for the following reasons. 19 BACKGROUND 20 On December 9, 2016, Defendant’s counsel James Castle mailed a Notice of Deposition of 21 Abraham Boskovitz, M.D. to Plaintiff’s counsel, Eric Whitehead. Mot. at 2; see id., Ex. 1 (Notice 22 of Deposition). The deposition was scheduled for January 5, 2017 at 8:30 a.m. in defense 23 counsel’s office in Sacramento. Id. The day before, Whitehead attempted to contact Defendant’s 24 three attorneys by phone and email; they did not respond. Mot. at 2. 25 On January 5, 2017, Whitehead drove from San Francisco to Sacramento to attend the 26 deposition. Id. Neither defense counsel nor the court reporter was present. Id. Whitehead again 27 tried to contact Defendant’s attorneys. Id. at 2-3. At 9:00 a.m., defense counsel Royal Oakes 28 notified Whitehead that the deposition had been cancelled. Id. at 3. Whitehead returned to San 1 Francisco, completing a trip that consisted of 196 total miles and lasted 6.5 hours. Id. at 3. Oakes 2 later confirmed they failed to notify Whitehead of the cancellation. Id., Ex. 2 (email from Oakes 3 to Whitehead). Plaintiff now seeks a total of $4,004.86 in sanctions: $3,900 for 6.5 hours of work at a 4 5 billable rate of $600 per hour plus $104.86 for travel expenses. Id. at 4. LEGAL STANDARD 6 Under Federal Rule of Civil Procedure 30, “[a] party who, expecting a deposition to be 7 8 taken, attends in person or by an attorney may recover reasonable expenses for attending, 9 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 11 United States District Court Northern District of California 10 and unilaterally cancels a noticed deposition. Plyley v. Grangaard, 2014 WL 1599930, at *4 12 (N.D. Cal. Apr. 21, 2014); see also Luna Gaming-San Diego LLC v. Dorsey & Whitney, LLP, 13 2009 WL 196325 (S.D. Cal. Jan. 27, 2009) (holding that it was the responsibility of counsel who 14 noticed the depositions “to either appear and conduct the depositions or to notify all the interested 15 parties of its intent not to conduct the depositions,” and failure to do so would result in 16 compensation for opposition’s travel time and expenses (quoting Macrovision Corp. v. VSA Ltd., 17 1989 WL 69961 (D. Or. June 8, 1989))). The Ninth Circuit has established that the appropriate method for calculating a reasonable 18 19 fee award is the lodestar method of calculation, which multiplies the number of hours the 20 prevailing party reasonably expended on the litigation by a reasonable hourly rate. Morales v. 21 City of San Rafael, 96 F.3d 359, 363-364 (9th Cir. 1996). “In determining a reasonable hourly 22 rate, the district court should be guided by the rate prevailing in the community for similar work 23 performed by attorneys of comparable skill, experience, and reputation.” Ingram v. Oroudjian, 24 647 F.3d 925, 928 (9th Cir. 2011). “The burden is on the fee applicant to produce satisfactory 25 evidence of the relevant market rate” in addition to his own affidavits. Van Skike v. Director, 26 Office of Workers’ Comp. Programs, 557 F.3d 1041, 1046 (9th Cir. 2009); Blum v. Stenson, 465 27 U.S. 886, 896 n.11 (1984). 28 // 2 DISCUSSION 1 2 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 4 compensable in the form of sanctions where a party fails to appear at a deposition he has noticed.” 5 Jones v. Lehigh Sw. Cement Co., 2014 WL 346619, at *6 (E.D. Cal. Jan. 30, 2014). However, the 6 Court finds Plaintiff’s $600 per hour rate—unsupported by affidavit or declaration—is 7 unreasonable for an attorney who, according to The State Bar of California, was admitted to the 8 bar in 2014. See Attorney Search for The State Bar of California, 9 (attorney search field for “Eric B. Whitehead”); Campbell v. Nat’l Passenger R.R. Corp., 718 F. 10 Supp. 2d 1093, 1101 (N.D. Cal. Feb. 18, 2010) (rejecting counsel’s request for $400 per hour for 11 United States District Court Northern District of California 3 services where counsel had three years of experience). 12 Accordingly, the Court ORDERS Defendant to pay Plaintiff $2,500 for its failure to notify 13 him of the January 5, 2017 deposition’s cancellation. This represents a rate of just under $400 per 14 hour. Defendant also shall pay $104.86 for the travel expenses Plaintiff’s counsel incurred. 15 Defendant shall pay Plaintiff no later than April 14, 2017. 16 IT IS SO ORDERED. 17 18 19 20 Dated: March 31, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 21 22 23 24 25 26 27 28 3

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