ENGLISH v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY

Filing 33

MEMORANDUM OPINION AND ORDER denying without prejudice Defendant's 27 Motion to Compel Payment of Expert Fees for Preparation for Discovery Deposition. Signed by Magistrate Judge Robin M. Meriweather on 11/9/2017. (lcrm2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHIMWALA F. ENGLISH,
Plaintiff,
v.
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,
Defendant.

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) Civil Action No. 16-02335 (ABJ/RMM)
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MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Washington Metropolitan Area Transit
Authority’s (“Defendant” or “WMATA”) Motion to Compel Payment of Expert Fees for
Preparation for Discovery Deposition [ECF No. 27], which seeks to compel Chimwala F.
English (“Plaintiff” or “Ms. English”) to pay fees for an expert witness’s deposition preparation
time. Ms. English opposes the motion. The District Judge presiding over this case has referred
all discovery disputes to the undersigned Magistrate Judge pursuant to Local Civil Rule 72.2(a).
See Order, ECF No. 21. Having reviewed the parties’ submissions, the Court will deny without
prejudice WMATA’s Motion to Compel Payment of Expert Fees for Preparation for Discovery
Deposition (“Motion to Compel Fees”) [ECF No. 27] for the reasons set forth below.
BACKGROUND
This case is a wrongful death and survival action arising from a September 3, 2015
accident in which Reginald Burrell was dragged under the rear portion of a WMATA bus and
injured. See Compl. ¶¶ 7–13, ECF No. 1. Mr. Burrell was hospitalized after the accident and
died five days later. Id. ¶ 17. Ms. English alleges that the WMATA employee who operated the
bus that injured Mr. Burrell acted negligently, and that the driver’s negligence was the direct,

sole, and proximate cause of Mr. Burrell’s injuries and subsequent death. Id. ¶¶ 21, 51, 58, 87.
WMATA admits that at all relevant times the bus driver was acting within the scope of his
employment as a WMATA bus operator, but denies that it or the driver was negligent. Answer
at 2–3, ECF No. 5.
Ms. English deposed WMATA’s medical expert, Dr. Romergryko G. Geocadin, on June
9, 2017. See Def.’s Mot. to Compel Payment of Expert Fees for Preparation for Discovery Dep.
(“Def.’s Mot. to Compel”) ¶¶ 2–4, ECF No. 27. Dr. Geocadin testified regarding the conscious
pain and suffering that Mr. Burrell experienced prior to his arrival at Washington Hospital
Center. See Pl.’s Opp’n to Def.’s Mot. to Compel, Ex. 4 at 22:4–21 (“Pl.’s Opp’n”), ECF No.
29-4. Ms. English paid Dr. Geocadin for the deposition. See Pl.’s Opp’n at 10, ECF No. 29; see
also Def.’s Mot. to Compel ¶ 4, ECF No. 27. On June 14, WMATA sent Ms. English an invoice
seeking $5,950 for the time Dr. Geocadin spent preparing for the deposition. Def.’s Mot. to
Compel ¶¶ 5–6, ECF No. 27; Def.’s Mot. To Compel, Ex. 2, ECF No. 27-3. Ms. English has not
yet paid this invoice. See Def.’s Mot. To Compel ¶ 6, ECF No. 27.
WMATA now seeks a Court order compelling Ms. English to pay for the time that Dr.
Geocadin spent preparing for the deposition. See id. at 1. Ms. English opposes the motion on
two grounds, arguing: first, that WMATA failed to meaningfully confer as required under Local
Civil Rule 7(m); and second, that WMATA has not proven that the time Mr. Geocadin spent on
deposition preparation, or the hourly fee he charged, is reasonable. See generally Pl.’s Opp’n.
WMATA filed no reply.

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LEGAL STANDARDS
I.

Motion to Compel Expert Fees for Deposition Preparation
Federal Rule of Civil Procedure 26(b)(4)(E) provides that “[u]nless manifest injustice

would result, the court must require that the party seeking discovery . . . pay the expert a
reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D).” Time
spent “responding to discovery” includes the time an expert uses to prepare for a deposition. See
Barnes v. Dist. of Columbia, 272 F.R.D. 135, 137 (D.D.C. 2011); Schmidt v. Solis, 272 F.R.D. 1,
1–3 (D.D.C. 2010). The party seeking reimbursement bears the burden of establishing that the
fee is reasonable. Barnes v. Dist. of Columbia, 274 F.R.D. 314, 316 (D.D.C. 2011) (citing
Guantanamera Cigar Co. v. Corporaction Habanos, S.A., 729 F. Supp. 2d 246, 255–56 (D.D.C.
2010). “[T]he party who noticed the deposition, must compensate the expert accordingly.”
Barnes, 272 F.R.D. at 137.
II.

Local Civil Rule 7(m)
This Court’s Local Rules require that “[b]efore filing any nondispositive motion in a civil

action, counsel shall discuss the anticipated motion with opposing counsel in a good-faith effort
to determine whether there is any opposition to the relief sought and, if there is, to narrow the
areas of disagreement.” LOCAL CIV. R. 7(m). This rule was adopted “to promote the resolution
of as many litigation disputes as possible without court intervention, or at least to force the
parties to narrow the issues that must be brought to the court.” Ellipso, Inc. v. Mann, 460
F. Supp. 2d 99, 102 (D.D.C. 2006) (citing United States ex rel. Pogue v. Diabetes Treatment
Ctrs. of Am., Inc., 235 F.R.D. 521, 529 (D.D.C. 2006)); see also Dist. Hosp. Partners, L.P. v.
Sebelius, 971 F. Supp. 2d 15, 21 (D.D.C. 2013); FED. R. CIV. P. 37(a)(1) (requiring that a motion
to compel discovery “include a certification that the movant has in good faith conferred or

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attempted to confer with the person or party failing to make . . . discovery in an effort to obtain it
without court action”). Parties’ “obligation to confer may not be satisfied by perfunctory action,
but requires a good faith effort to resolve the non-dispositive disputes that occur in the course of
litigation.” Pogue, 235 F.R.D. at 529.
DISCUSSION
Ms. English urges the Court not to reach the merits of the Motion to Compel Fees,
arguing that the motion should be denied because WMATA’s counsel failed to confer to the
degree required by Rule 7(m). See Pl.’s Opp’n at 1–6, ECF No. 29. Local Civil Rule 7(m)
requires parties to make a “good-faith effort to determine whether there is any opposition to the
relief sought and, if there is, to narrow the areas of disagreement.” LOCAL CIV. R. 7(m). A
“good-faith” effort means that parties must take “real steps to confer.” Ellipso, Inc., 460
F. Supp. 2d at 102 (quoting United States ex rel. K & R Ltd P’ship v. Mass. Hous. Fin. Agency,
456 F. Supp. 2d 46, 52 (D.D.C. 2006)) (internal quotation marks omitted). Courts in this District
have previously denied non-dispositive motions for failure to comply with Local Civil Rule
7(m). See, e.g., Ellipso, Inc., 460 F. Supp. 2d at 102 (denying parties’ discovery motions
“because the parties have not complied with Local Civil Rule 7(m).”); Pogue, 235 F.R.D. at 529
(denying defendants’ motion to compel for failure “to confer with opposing counsel in an
attempt to resolve the dispute before filing a non-dispositive motion” under both the Federal
Rules and Local Civil Rule 7(m)); see also Equal Rights Ctr. v. Post Properties, Inc., 246 F.R.D.
29, 31 (D.D.C. 2007) (noting that “[f]ailure to comply with the duty to confer requirement . . . is
grounds for dismissing a motion to compel.”) (citing cases); Walker v. Dist. of Columbia, 317
F.R.D. 600, 605 (D.D.C. 2016) (noting “similar cases where movants have overlooked their

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duties under . . . the Local Rules” and “judges in this Circuit have . . . denied the motion to
compel.”).
Here, it does not appear that WMATA has meaningfully conferred with Ms. English
regarding the expert fee dispute. Exhibit 3 to the Motion to Compel Fees contains three emails
reflecting counsel’s communications regarding this issue. See Def.’s Mot. to Compel, Ex. 3,
ECF No. 27-4. The first email, sent by WMATA’s counsel on June 14, 2017 at 4:30 p.m.,
advises Ms. English of Dr. Geocadin’s supplemental invoice and seeks payment. See id. The
second email, sent by Plaintiff’s counsel on June 14, 2017 at 5:37 p.m. responds in the negative
to the request. See id. The third email, sent by WMATA’s counsel on June 19, 2017 at 2:55
p.m., asserts that the email constitutes “an effort to avoid going to the Court with a motion to
compel your payment of Dr. Geocadin’s preparation for deposition fees” and that “[i]f you do
not consent to pay the doctor’s preparation Invoice on or before June 223, 2017 [sic], I will have
no alternative but to file a motion.” Id. This is where WMATA’s Exhibit 3 ends.
Ms. English has submitted an additional email chain which further reveals the extent of
the parties’ pre-filing discussions. Specifically, Ms. English has filed her counsel’s response to
WMATA’s counsel’s last email. Pl.’s Opp’n, Ex. 3 at 2, ECF No. 29-3. In this email, which
Plaintiff’s counsel sent on Monday, June 19 at 3:09 p.m., Plaintiff’s counsel objects to the
invoice’s calculation of the time Dr. Geocadin spent preparing and the amount charged, and asks
WMATA to “[p]lease provide us with the date(s) of each purported expenditure of time by Dr.
Geocadin, as well as the time of day that he claims to have spent such time.” Id. Neither Ms.
English nor WMATA has submitted an email in which WMATA responds to Plaintiff’s
counsel’s June 19 email. See id. Ms. English asserts that “[i]nstead of providing the information

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Plaintiff’s counsel requested in an effort to resolve the dispute, defense counsel chose to file the
Motion.” Pl.’s Opp’n at 5, ECF No. 29.
WMATA’s efforts to confer with Plaintiff’s counsel are too perfunctory to satisfy Local
Civil Rule 7(m). Plaintiff’s counsel requested details about the invoice which, if provided by
WMATA, may have narrowed or eliminated the dispute. Despite having received that request
within minutes of threatening to move to compel expert fees, WMATA did not respond.
Although WMATA appears to have made a good faith effort to initiate a discussion, the abrupt
and premature end to the discussion falls short of the meaningful and “real steps” to confer that
Local Rule 7(m) requires. Ellipso, Inc., 460 F. Supp. 2d at 102. Accordingly, WMATA has not
satisfied Rule 7(m)’s requirement that parties confer in good-faith before filing a non-dispositive
motion. See Pogue, 235 F.R.D. at 529; Ellipso, Inc., 460 F. Supp. 2d at 102; see also Def.’s
Mot. to Compel at 4 (“Good Faith Certificate”), ECF No. 27.
CONCLUSION
For the foregoing reasons, the Court concludes that WMATA failed to comply with Local
Civil Rule 7(m) in advance of filing this non-dispositive motion, and therefore ORDERS
that Defendant’s Motion to Compel Payment of Expert Fees for Preparation for Discovery
Deposition [ECF No. 27] is hereby DENIED without prejudice. If the parties are unable to
resolve this dispute after conferring further, WMATA may renew its motion.
SO ORDERED.
Digitally signed by Robin M.
Meriweather
Date: 2017.11.09 18:20:50
-05'00'

DATED: November 9, 2017

ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE

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