Hill Dermaceuticals, Inc. v. Anthem, Inc.

Filing 168

ORDER denying 159 Motion for Attorney Fees. Signed by Magistrate Judge Thomas B. Smith on 1/19/2017. (EC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
HILL DERMACEUTICALS, INC.,
Plaintiff,
v.

Case No: 6:16-cv-833-Orl-40TBS

ANTHEM, INC.,
Defendant.
ORDER
Pending before the Court is Plaintiff Hill Dermaceuticals, Inc.’s Motion for All Costs
Incurred as a Result of Anthem Inc.’s Cancellation of the September 27, 2016 Deposition
(Doc. 159). 1 Anthem has filed its response (Doc. 166). Upon consideration, the motion is
DENIED to the extent it is not moot.
As set forth in the papers, Hill served Anthem with a Rule 30(b)(6) Notice of
Videotaped Deposition setting a deposition date of September 12, 2016. On Anthem’s
request, the parties rescheduled the time and place of deposition to September 27, 2016,
in Cincinnati, Ohio. On September 20, 2016, Anthem filed a Motion to Stay Discovery
(Doc. 61). On September 21, 2016, Hill’s counsel sent Anthem’s counsel an e-mail asking
if Anthem intended to stay the mutually scheduled September 27, 2016 Rule 30(b)(6)
deposition (Doc. 166 at 9-10). Anthem responded affirmatively that same day (September
21st). Id.

Although the District Judge has recently dismissed this action, the dismissal Order expressly
reserves jurisdiction “to resolve any pending motions for sanctions.” (Doc. 165).
1

On September 23rd, Hill’s counsel prepared an emergency motion to compel the
deposition (Doc. 68). 2 On September 24th, Hill’s counsel commenced preparation for the
deposition. The Court held a telephonic hearing on September 26th (Doc. 70), and
recognized the cancellation of the deposition. By Oder issued September 27, 2016, the
Court ruled:
On or before October 21, 2016, Anthem, Inc. shall submit its
corporate representative to Hill Dermaceuticals, Inc. for
deposition. These parties shall additionally meet and confer in
good faith to resolve any costs incurred by Hill
Dermaceuticals, Inc. for Anthem, Inc.’s unilateral cancellation
of the previously-scheduled deposition. Should the parties not
reach an agreement, Hill Dermaceuticals, Inc. may ask the
Court to resolve the issue by filing a properly supported
motion within fourteen (14) days following the corporate
representative’s deposition.
(Doc. 71, emphasis added).
Hill argues that an award of “any costs” includes attorney’s fees, and now seeks
$1,380.20, representing attorney’s fees for preparation of the emergency motion to
compel, deposition preparation and travel to Cincinnati, as well as reimbursement of the
plane ticket. Anthem represents that it has already agreed to reimburse Hill for the
$240.20 non-refundable ticket, but contends that Hill is not entitled to attorney’s fees
related to the cancelled deposition. Anthem is correct.
Costs are costs and fees are fees, and the use of the word “costs” in this context
means just that. Had the Court meant to award reasonable attorney’s fees it would have
done so. Indeed, a review of the chronology of this dispute supports a finding that an
award of attorney’s fees would be inappropriate. All of the fees sought by Hill here were
incurred after counsel was notified that Anthem was cancelling the deposition. Attorney

2

The motion was denied as moot (Doc. 71).

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time incurred to prepare to take the deposition was not wasted since the deposition has
been taken, and Hill is not entitled to fees for a lawyer to travel for a deposition she knew
was not going to occur. Hill is entitled to be reimbursed for the non-refundable ticket, as
conceded by Anthem, but is not entitled to fees. Anthem is ordered to pay Hill $240.20 in
costs.
DONE and ORDERED in Orlando, Florida on January 19, 2017.

Copies furnished to Counsel of Record

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