Finch et al v. Owners Insurance Company et al

Filing 99

ORDER awarding Defendant $2,873.00 in attorney's fees and $532.99 in costs incurred for the depositions of Frank Parson and Stuart Gregory regarding 65 Order. Signed by Chief Judge J. Randal Hall on 02/04/2019. (jlh)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

CARRIE FINCH, Individually and

*

as Executor of the Estate of

*

Juvay Finch,

*
■k
•k

Plaintiff,

k

*

V.

CV

616-169

*
*

OWNERS INSURANCE COMPANY,

*

Defendant.

*
*■

ORDER

The

Court's

Order

of

December

6,

2017,

found

Plaintiff

violated Federal Rule of Civil Procedure 26(a) (2) (B)'s disclosure

requirements and missed the Court's deadline to disclose expert
witness reports.

(Doc.

65, at 7-11,

19. )

When a party fails to

properly disclose an expert witness report. Federal Rule of Civil
Procedure

37(c) (1)

allows

witness to supply evidence.
sanction,

the

court .

.

a

court

to

prevent

the

use

of

""In addition to or instead of this

. may

order

payment

of

the

reasonable

expenses, including attorney's fees, caused by the failure."
R. Civ. p.

that

Fed.

37(c) (1) (A) .

In this case,

the Court choose the latter path.

Rather than

exclude the testimony of Frank Parson and Stuart Gregory, the Court

reopened discovery and allowed Defendant to depose both experts.

(Order of Dec. 6, 2017, at 9, 11.) The Court then allowed Defendant
to ^^submit an itemized list of the costs incurred, which will be

borne by Plaintiff," for the two depositions.

Subsequently,

Defendant's

counsel

(Id.)

Maureen

E.

Murphy

and

Seretha Howell, Ms. Murphy's paralegal, submitted affidavits with
an itemized list of the costs incurred in preparing for and taking

the depositions of Frank Parson and Stuart Gregory.
Doc. 69, SI 5; Howell Aff., Doc. 70, SI 5.)

(Murphy Aff.,

Ms. Murphy billed 30.2

hours at a rate of $150.00 per hour and incurred $483.84 in mileage

expenses.

(Murphy Aff., SI 5.)

rate of $65.00 per hour.

Ms. Howell billed 2.2 hours at a

(Howell Aff., SI 5.)

incurred $49.15 in copying costs.

Defendant also

(Id.)

Plaintiff makes two objections to the costs and fees claimed.

First, they argue the Court should not award attorney's fees for
the

time

Ms.

Murphy

spent

traveling

from

her

office

in

Douglasville, Georgia to Statesboro, Georgia to take the two
depositions.

In

Plaintiff's

view,

the

costs

of

Defendant's

decision to retain out-of-town counsel when there are qualified

attorneys in the Statesboro area should not be borne by Plaintiff.
The Court is inclined to agree.

See, e.g., Martin v. Augusta-

Richmond Cnty., Ga., Comm'n, 2012 WL 5950408, at *7 n.4 (S.D. Ga.

Nov. 28, 2012) (reducing attorney's fees award for counsel's travel
time from Atlanta to Augusta where there was no evidence that the
plaintiff ''could not have hired competent local counsel"); Kearney

V. Auto-Owners Ins. Co., 713 F. Supp. 2d 1369, 1379 (M.D. Fla.

2010) (same).

Accordingly, the Court will subtract six hours of

round-trip travel^ from Ms.

Murphy's fees for attending

the

depositions of Mr. Parson and Mr. Gregory.

Second, Plaintiff contends she should not be required to pay
for the hours billed preparing for and conducting Mr. Gregory's

deposition.
Defendant

In her view, these costs represent a windfall for
because

Plaintiff

made

Mr.

Gregory

available

for

deposition before the end of discovery and it was Defendant's
decision to not depose him.

Plaintiff forgets, however, that part

of the reason Defendant chose to not depose Mr. Gregory during

discovery was because Plaintiff failed to timely disclose his

expert witness report. Defendant reasonably believed that a motion
to exclude Mr. Gregory would succeed based on Plaintiff's failure

to comply with Rule 26 and the Court's deadlines.

Accordingly,

the Court will not reduce the fees for preparing and conducting
Mr. Gregory's deposition.

In sum, after subtracting the fees for Ms. Murphy's travel

time, the Court awards Defendant $2,873.00 in attorney's fees and
$532.99 in costs incurred for the depositions of Frank Parson and
Stuart Gregory.

1 Six hours represents the approximate round-trip travel time between defense
counsel's office in Douglasville and Statesboro where the depositions were held.

ORDER

ENTERED

at

Augusta,

Georgia,

this

^4#

day

of

February, 2019.

J. RAN^D^^HALL, CHIEF JUDGE

UNITED^TATES DISTRICT COURT
SOUXHE^ DISTRICT OF GEORGIA