Dowling v. Xcel Energy

Filing 57

ORDER re: Defendant's oral motion for attorney's fees and costs associated with Plaintiff's failure to appear at deposition and 55 Defendant's Notice of Statement of Fees. Plaintiff shall pay costs and attorney's fees to Defendant in the amount of $724.00 on or before 11/2/2012. By Magistrate Judge Michael E. Hegarty on 10/15/2012. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03173-REB-MEH
THERESA L. DOWLING,
Plaintiff,
v.
XCEL ENERGY,
Defendant.

ORDER

Michael E. Hegarty, United States Magistrate Judge.
This matter comes before the Court on Defendant’s Notice of Statement and Fees [filed
October 9, 2012] and Defendant’s oral motion for attorney’s fees and costs associated with
Plaintiff’s failure to appear at her deposition on September 25, 2012, at 10:00 a.m. at the Alfred A.
Arraj United States Courthouse (“the Courthouse”). For the reasons set forth below, Defendant’s
motion is granted and Plaintiff shall be required to pay Defendant’s fees and costs pursuant to Fed.
R. Civ. P. 37(d).
I.

Background
Plaintiff initiated this action pro se on December 6, 2011. At the Scheduling Conference

held on March 1, 2012, Defendant’s counsel informed the Court of difficulties they experienced in
communicating with Plaintiff for purposes of preparing the proposed Scheduling Order. In
particular, counsel represented that they had attempted to contact Plaintiff on over 20 occasions to
arrange a Rule 26(f) conference, all to no avail. The Court admonished Plaintiff of her obligation
to respond to counsel’s phone calls within 24 hours unless Plaintiff was physically unable to do so.
In the event Plaintiff could not use the telephone, the Court instructed her to email counsel

explaining the medical emergency.
Following the Scheduling Conference, Defendant reported additional instances in which
Plaintiff could not be reached for discussion. (See docket #49 at 1.) In anticipation of further
difficulties in completing Plaintiff’s deposition, Defendant moved to depose Plaintiff at the
Courthouse. (Id. at 2.) In light of Defendant’s concerns and the Court’s own observations of
Plaintiff’s conduct in this litigation, the Court granted Defendant’s motion and arranged for the use
of its facilities for September 25, 2012, at 10:00 a.m. (Docket #51.) Defendant noticed Plaintiff’s
deposition accordingly.
Consistent with the Court’s orders and the notice served on Plaintiff, Defendant’s counsel
appeared at the Courthouse on September 25, 2012, at 10:00 a.m. to take Plaintiff’s deposition. In
conjunction with the anticipated deposition, counsel for Defendant hired a court reporter and
videographer, who also appeared as scheduled. Plaintiff did not appear and did not attempt to
contact the Court or Defendant’s counsel to explain her absence.
After waiting approximately 45 minutes for Plaintiff to arrive, counsel reported Plaintiff’s
non-appearance on the record. While on the record, the Court attempted to call Plaintiff twice at the
number provided on the Court’s electronic filing system. Both times, the call went to voicemail for
“Terry Dowling.” Defendant presented evidence that it served Plaintiff with a notice of deposition
by email and regular mail on September 12, 2012. The emails were sent to the addresses provided
by Plaintiff in various court documents, and none were returned as undeliverable. The notice was
also sent via Federal Express and signed for by “K. Dowlin” on September 13, 2012, at 10:11 a.m.
In addition to notices sent by Defendant, the Clerk of the Court mailed Plaintiff a copy of the Court’s
September 11, 2012 minute order granting Defendant’s motion to notice Plaintiff’s deposition at the
Courthouse on September 25, 2012. The minute order was not returned as undeliverable.

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In consideration of the notices sent by Defendants and the minute order mailed by the Clerk
of the Court, the Court was satisfied that Plaintiff received adequate notice of the deposition. In
addition, the Court inquired regarding the costs incurred by Defendant as a result of Plaintiff’s
failure to appear. As noted on the record, the videographer and court reporter charged fees of
$300.00 and $50.00, respectively, for their appearance at the deposition. Thus, the Court found
Defendant’s total costs for the attempted deposition were $350.
The Court issued an order to show cause on September 25, 2012, directing Plaintiff to show
cause in writing by October 9, 2012, as to why the Court should not recommend dismissal of her
claims for her failure to prosecute this action, and why Plaintiff should not be required to pay the
costs incurred by Defendant as a result of her failure to appear. (Docket #53.) In addition, the Court
ordered Plaintiff to appear before the Court on October 9, 2012, at 9:30 a.m. for a hearing on the
September 25, 2012 order. (Id. at 3.)
In accordance with its order to show cause, the Court held a hearing on October 9, 2012.
Counsel for Defendant attended in person, but Plaintiff failed to appear. At this time, Defendant
renewed its request for fees and costs associated with the deposition. The Court ordered Defendant
to file documentation of these expenses as soon as possible. Accordingly, Defendant filed the
pending Notice, which contains documentation of the aforementioned costs and attorney’s fees
associated with the attempted deposition.
II.

Discussion
Pursuant to Fed. R. Civ. P. 37(d)(1)(A)(ii), the Court, on motion, may order sanctions if “a

party...fails, after being served with proper notice, to appear for [his or her] deposition[.]” Though
the Court may impose any of the sanctions listed in Rule 37(b)(2)(A)(i)-(vi), it “must require the
party failing to act...to pay the reasonable expenses, including attorney’s fees, caused by the failure,

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unless the failure was substantially justified or other circumstances make an award of expenses
unjust.” Fed. R. Civ. P. 37(d)(3).
As described above, Defendant served Plaintiff with proper notice of the deposition via email
and certified mail. The Court also informed Plaintiff of the date, time, and location of her impending
deposition by providing Plaintiff with a copy of its September 11, 2011 minute order approving
Defendant’s request to notice Plaintiff’s deposition at the Courthouse. Although the Rule 37(d) does
not explicitly require it, the Court provided Plaintiff with an opportunity to explain why she should
not be required to pay the costs incurred by Defendant as a result of her failure to appear at the
deposition. Plaintiff did not respond, either in writing or in person. Thus, the Court infers no
justification on her behalf.
Exhibit A to Defendant’s Notice of Fees documents, in detail, Defendant’s attorney’s fees
and costs. As noted above, Defendant paid $300 for the services of the videographer and $50 for
the court reporter, totaling costs of $350.00. In addition, Defendant paid its attorney, Martine Wells,
$220 per hour for her 1.7 hours of time spent at the Courthouse during Plaintiff’s attempted
deposition. The Court finds Ms. Wells’ billing rate is supported by her skill and experience, and the
Court observes no excessive or redundant charges. Therefore, the Court finds Defendant’s
attorney’s fees of $374.00 are reasonable. In sum, the Court is satisfied that Defendant is entitled
to its requested fees and costs of $724.00.
III.

Conclusion
In light of the above and pursuant to the Court’s authority to sanction Plaintiff for her failure

to appear at her deposition, it is hereby ORDERED that Plaintiff shall pay costs and attorney’s fees
to Defendant in the amount of $724.00 on or before November 2, 2012.

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Dated at Denver, Colorado, this 15th day of October, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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