Barcus v. The Phoenix Insurance Co.

Filing 78

MEMORANDUM AND ORDER granting in part and denying in part 56 Motion to Strike. Signed by Magistrate Judge Kenneth G. Gale on 7/19/19. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WILLIAM LANE BARCUS,

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Plaintiff,
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v.
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THE PHOENIX INSURANCE CO.,
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Defendant.
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____________________________________)

Case No.: 17-2492-JWL-KGG

MEMORANDUM & ORDER ON MOTION FOR FEES & COSTS
In the present action, which was removed from the District Court of Miami
County, Kansas, Plaintiff seeks the proceeds of uninsured motorist coverage from
Defendant insurer. (Doc. 1-1.) Plaintiff also seeks attorney fees pursuant to
K.S.A. §40-256.
Now before the Court is Defendant’s Motion to Strike Expert, based on the
failure of Plaintiff counsel to appear for the deposition of vocational expert
Michael Dreiling.1 (Doc. 56.) Defense counsel then engaged in unsuccessful
efforts over a two-week period to reschedule the deposition, culminating in filing
the underlying motion. (Id.)

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Plaintiff’s expert Mr. Dreiling did, however, appear for the deposition, which was
noticed for Dreiling’s office. (Doc. 56-3; Doc. 56-5.)
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Defendant has informed the Court that the deposition has been scheduled
since the filing of this motion, thus Defendant withdrew the request to strike the
expert. (Doc. 57.) “Defendant, however, maintains its request for the fees and
expenses associated with the initial appearance at the deposition wherein Plaintiff’s
counsel did not appear at the time scheduled; and for the fees and expenses
incurred in filing the Motion to Strike.” (Id.) These fees and expenses are listed as
$540.00 incurred for appearing for the originally scheduled deposition and filing
the underlying motion along with costs of $93.00 for the court reporter. (Id.)
Plaintiff’s counsel responds that he was late for the deposition because he
had a medical procedure that “went longer than expected” that day. (Doc. 69, at
1.) Because he could not take his phone into the examination room, “he was
unable to contact anyone about the delay.” (Id.) Plaintiff’s counsel states he was
unable to use his phone until approximately ten minutes after the deposition was to
have occurred but, despite his efforts, was unable to contact anyone in Mr.
Dreiling’s office to indicate he was on his way. (Id.) Plaintiff’s counsel indicates
he arrived at Dreiling’s office approximately 20-25 minutes late, but defense
counsel had already gone. (Id.) Plaintiff’s counsel contends that both defense
counsel and the court reporter were informed approximately ten minutes later (3035 minutes after the deposition was noticed to have commenced), but defense
counsel “refused to return to the deposition.” (Id., at 1-2.)
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The Court finds that defense counsel should be reimbursed for defense
counsel’s attorney’s fees and the court reporter expense relating to the originally
scheduled deposition for which Plaintiff’s counsel failed to appear. While the
Court sympathizes with the situation in which Plaintiff’s counsel found himself,
the fact remains that defense counsel was not at fault for what occurred that day.
The Court, however, overrules Defendant’s request for fees relating to filing the
present motion. Because Defendant has not itemized the claimed attorney fees by
date or activity, the parties are instructed to confer regarding the fees pursuant to
the procedure enumerated in D. Kan. Rule 54.2.

IT IS THEREFORE ORDERED that Defendant’s Motion to Strike (Doc.
56) is GRANTED in part and DENIED in part as more fully set forth above.
IT IS SO ORDERED.
Dated this 19th day of July, 2018, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

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