Lewis v. Delta Air Lines, Inc.

Filing 105

ORDER re 96 Order to Show Cause. IT IS HEREBY ORDERED that Plaintiff shall pay Defendant the total sum of $4,656.58. Plaintiff is ordered to make the payment to Defendant by 1/31/16. Signed by Magistrate Judge George Foley, Jr. on 12/28/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH LEWIS,

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Plaintiff,
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vs.
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DELTA AIR LINES, INC.,
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Defendant.
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__________________________________________)

Case No. 2:14-cv-01683-RFB-GWF
ORDER

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This matter is before the Court on Plaintiff’s failure to comply with this Court’s Order

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Scheduling a Settlement Conference (ECF No. 92). The Court issued an Order to Show Cause (ECF

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No. 96) on November 18, 2016 instructing Plaintiff to show why sanctions should not be imposed on

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the basis of his failure to comply with this Court’s Order. Plaintiff filed his Response (ECF No. 99)

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on December 1, 2016. Defendant filed is Opposition (ECF No. 102) on December 15, 2016.

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BACKGROUND

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On September 6, 2016, District Judge Richard F. Boulware referred this matter to the

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undersigned Magistrate Judge for a settlement conference. (ECF No. 90). On September 30, 2016,

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this Court entered an order scheduling a settlement conference for November 17, 2016. (ECF No.

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92). In the order setting the settlement conference, the Court outlined the attendance requirements,

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one of which ordered all individual parties to be present at the conference. Id. None of the parties

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requested an exception to the attendance requirements. As scheduled, on November 17, 2016, a

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settlement conference commenced at 9:00 a.m. Plaintiff’s counsel, Thatcher Stone, Esq., William

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Woodrow, Esq. and Richard Segerblom, Esq. were present. In addition, Scott Mahoney, Esq.,

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counsel for Defendant, and Kelly Giustina, representative for Defendant, were present. Plaintiff,

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however, failed to appear. Plaintiff’s counsel were unable to provide any explanation, let alone

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justification, for Plaintiff’s failure to appear. They, in fact, were surprised by his nonappearance.

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After meeting with Plaintiff’s counsel and with Defendant, the parties did not reach a settlement and

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settlement discussions concluded at 12:00 p.m. (See ECF No. 95).

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DISCUSSION

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Parties and attorneys are required to follow pretrial orders. See Fed. R. Civ. P. 16(f).

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“Violations of Rule 16 are neither technical nor trivial, but involve a matter most critical to the court

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itself: management of its docket and the avoidance of unnecessary delays in the administration of its

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cases.” Robles v. APEX Linen LLC, 2015 WL 5785499, at *2 (D. Nev. Oct. 1, 2015)(quoting Martin

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Family Trust v. Heco/Nostalgia Enter. Co., 186 F.R.D. 601, 603 (E.D. Cal. 1999). Rule 16(f)

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provides that the Court “must order the party, its attorney, or both to pay the reasonable expenses -

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including attorney’s fees – incurred because of any noncompliance with this rule. . .” Fed. R. Civ. P.

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16(f)(2). Similar to Rule 16(f), this Court’s Local Rules also provide the Court with authority to

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impose “any and all appropriate sanctions on an attorney or party” that fails to comply with any order

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of this court. Local Rule IA 11-8. The Ninth Circuit has repeatedly upheld sanctions imposed for

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failing to comply with orders regarding settlement conferences. See, e.g., Lucas Auto Eng’g, Inc. V.

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Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001) (affirming sanctions for failure to

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attend mediation with appropriate representative); Official Airline Guides, Inc. v. Goss, 6 F.3d 1385,

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1396 (9th Cir. 1993) (affirming sanctions for failure to comply with order to have representative with

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settlement authority available by telephone during settlement conference); Ayers v. City of Richmond,

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895 F.2d 1267, 1270 (9th Cir. 1990) (affirming sanctions for attorney who failed to appear at

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scheduled settlement conference).

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The Court finds that sanctions are appropriate here. Without Plaintiff’s presence at the

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settlement conference, the Court could not have a meaningful discussion regarding the merits of

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Plaintiff’s claims. In his response to the Court’s Order to Show Cause, Plaintiff asserts that he had

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“no good reason to explain his absence at the Settlement Conference.” Response (ECF No. 99), pg. 2.

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Since Plaintiff failed to justify his absence, the Court will impose sanctions on Plaintiff in the

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amount of Defendant’s reasonable attorney’s fees and costs in preparing for and attending the

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settlement conference.

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The Supreme Court has held that reasonable attorney fees must “be calculated according to

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the prevailing market rates in the relevant community,” considering the fees charged by “lawyers of

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reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-96 n.

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11, 104 S.Ct. 1541 (1984). Courts typically use a two-step process when determining fee awards.

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Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court must calculate the

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lodestar amount “by taking the number of hours reasonably expended on the litigation and

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multiplying it by a reasonable hourly rate.” Id. Furthermore, other factors should be taken into

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consideration such as special skill, experience of counsel, and the results obtained. Morales v. City of

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San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir. 1996). “The party seeking an award of fees should submit

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evidence supporting the hours worked and rates claimed . . . [w]here the documentation of hours is

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inadequate, the district court may reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S.

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424, 433 (1983). Second, the Court “may adjust the lodestar, [only on rare and exceptional

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occasions], upward or downward using a multiplier based on factors not subsumed in the initial

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calculation of the lodestar.” Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir.

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2000).

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Defendant Delta Airlines requests $14,332.50 in attorney’s fees based on 35 hours of work in

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preparing for and attending the settlement conference. That amount is based on work performed by

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Scott Mahoney, Esq. at an hourly rate of $485, reduced to $409.50 for Defendant. These fees are

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broken down as follows: $10,647.00 for 26 hours spent preparing Defendant’s confidential settlement

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conference statement; $2,620.80 for 6.4 hours spent preparing for the settlement conference; and

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$1,064.70 for 2.6 hours spent attending the settlement conference and preparing Defendant’s

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representative, Kelly Giustina. Upon review of Defendant’s counsel’s affidavit, the Court will not

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award fees for the time spent preparing Defendant’s settlement conference statement. However, the

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Court does find that the remaining 9 hours billed at an hourly rate of $409.50, which were spent

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preparing for and attending the settlement conference were reasonable and should be recovered by

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Defendant as a result of Plaintiff’s failure to attend the conference. The Court will therefore award

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Defendant reasonable attorney’s fees in the amount of $3,685.50. Defendant also requests

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reimbursement of costs in the amount of $971.08 associated with the non-airline travel expenses

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incurred by Defendant’s representative in attending the settlement conference. The costs include

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hotel, taxis, and meals. The Court finds that Defendant’s request is reasonable and will therefore

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award Defendant a total of $971.08 in costs.

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Thus, based on the reasonable hourly rate discussed above, the Court will award attorney’s

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fees in the amount of $3,685.50 and costs in the amount of $971.08 for a total of $4,656.58. The

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relevant factors are subsumed in this calculation of the reasonable attorney’s fees and costs, and there

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are no other exception circumstances which warrant enhancement or reduction of the fees.

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Accordingly,

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IT IS HEREBY ORDERED that Plaintiff shall pay Defendant the total sum of $4,656.58.
Plaintiff is ordered to make the payment to Defendant by January 31, 2016.

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DATED this 28th day of December, 2016.
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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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