Bartech Systems International, Inc. v. Mobile Simple Solutions, Inc. et al

Filing 267

ORDER granting in part ECF No. 238 Motion for Sanctions re Discovery; directing Plaintiff to file a renewed motion for attorneys' fees by 5/5/2017. Signed by Magistrate Judge Nancy J. Koppe on 4/5/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BARTECH SYSTEMS INTERNATIONAL, INC., )
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Plaintiff(s),
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vs.
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MOBILE SIMPLE SOLUTIONS, INC., et al.,
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Defendant(s).
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Case No. 2:15-cv-02422-MMD-NJK
ORDER
(Docket No. 238)

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Pending before the Court is Plaintiff’s motion for sanctions against Defendant Vincent

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Tessier (“Defendant”). Docket No. 238. Defendant filed a response in opposition and Plaintiff filed

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a reply. Docket Nos. 240, 250. The Court finds this matter properly resolved without oral argument.

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See Local Rule 78-1. For the reasons discussed below, the motion is GRANTED in part.

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I.

OVERVIEW

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The pending motion seeks to recover attorneys’ fees and costs arising from Defendant’s

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failure to attend a duly noticed deposition on December 15, 2016. See, e.g., Docket No. 238 at 2.

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Plaintiff’s counsel initially approached the subject of scheduling Defendant’s deposition sometime

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between December 5 and 15, 2016, by e-mailing Defendant’s former counsel on September 27,

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2016. Docket No. 238-2 at 2. The same day, one of Defendant ’s former attorneys, Patrick Byrne,

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responded that he had “passed along” Plaintiff’s counsel’s request regarding Defendant’s availability

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for a deposition during that time frame. Docket No. 238-3 at 2. Mr. Byrne also notified Plaintiff’s

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counsel that his firm intended to withdraw from the case, which occurred shortly thereafter. Id.;

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Docket No. 149. Neither Defendant nor his former counsel provided Plaintiff’s counsel information

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about Defendant’s availability during the specified time frame. Docket No. 238 at 3.

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On December 2, 2016, the Court issued an order requiring a co-defendant to appear for her

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deposition no later than December 16, 2016. Docket No. 169. Plaintiff’s counsel therefore e-mailed

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Defendant and his co-defendant to inquire about their availability for depositions on consecutive

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dates through December 16, 2016. Docket No. 238-4 at 2.

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On December 6, 2016, Plaintiff served a deposition notice on Defendant setting his

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deposition for 10:00 a.m. on December 15, 2016 in Las Vegas, Nevada. Docket No. 238 at 3. The

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same day, Defendant e-mailed Plaintiff’s counsel stating that he would not be available to attend a

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deposition before January 9, 2017. Docket No. 238-6 at 2. Plaintiff’s counsel responded that such

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a delay was not acceptable, but that counsel could accommodate other dates in December. Docket

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No. 238-7 at 2. On December 7, 2016, Defendant replied that he would be unavailable during the

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last two weeks of the year because he would be busy and traveling. Docket No. 238-8 at 2.

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Plaintiff’s counsel then reiterated his willingness to accommodate a different date in December

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rather than delaying the deposition. Id. Plaintiff’s counsel further reminded Defendant that he had

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initially approached Defendant about scheduling the deposition two and a half months before. Id.

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On December 8, 2016, Defendant e-mailed Plaintiff’s counsel stating that he “received

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medical results yesterday and they are not good” and that he was “not currently in a psychological

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state to be deposed.” Docket No. 238-10 at 2. Plaintiff’s counsel responded that, while he

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understood Defendant’s situation, the deposition must move forward on one of two days in

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December. Docket No. 238-11 at 2.

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On December 15, 2016, less than one hour before his deposition was to begin, Defendant

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notified Plaintiff’s counsel by e-mail that he was “at urgent care for a medical emergency” and would

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therefore be unable to attend the deposition. Docket No. 238-12 at 2. Plaintiff’s counsel responded

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by offering to take Defendant’s deposition the next day, while also reserving the right to pursue

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sanctions for the nonappearance. Docket No. 238-13 at 2. Defendant did not appear for his

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deposition on either day. See Docket No. 238 at 4-5.

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II.

ENTITLEMENT TO RECOVER EXPENSES

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Courts may impose sanctions for the failure of a party or a party’s officer, director or

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managing agent to appear for his deposition. Fed. R. Civ. P. 37(d)(1)(A)(I). Sanctions that may be

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imposed include those listed in Rule 37(b)(2)(A)(i)-(vi), which include case-dispositive sanctions.1

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Fed. R. Civ. P. 37(d)(3). Additionally, courts must award reasonable expenses, including attorneys’

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fees, unless the failure to appear was substantially justified or other circumstances make an award of

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expenses unjust. Id. The party facing sanctions bears the burden of establishing substantial

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justification or circumstances making an award of expenses unjust. Hyde & Drath v. Baker, 24 F.3d

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1162, 1171 (9th Cir. 1994) (internal citation omitted). A finding of bad faith is not a prerequisite for

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imposing sanctions under Rule 37(d), although a lack of bad faith may be considered in determining

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whether the imposition of sanctions would be unjust. Id.

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In this instance, rather than seeking case-dispositive sanctions, Plaintiff seeks to recover

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attorneys’ fees and costs arising from Defendant’s failure to appear at his December 15, 2016,

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deposition. See, e.g., Docket No. 238 at 2. Plaintiff submits that Defendant’s behavior was not

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substantially justified because of his failure to appear despite numerous communications from

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Plaintiff’s counsel, his inconsistent reasons for avoiding being deposed, inconsistencies in a doctor’s

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note he provided to Plaintiff and the Court, and the fact that he was only treated for abdominal pain.

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Docket No. 238 at 5-7. Plaintiff submits that these factors cast doubt on the allegedly urgent nature

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of Defendant’s medical condition on the day of the deposition. Id. In response, Defendant submits

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that his health issues began weeks before he received Plaintiff’s deposition notice, Plaintiff’s counsel

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would not reasonably accommodate his needs in scheduling the deposition, and Plaintiff’s December

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2, 2016 deposition notice did not provide sufficient warning of the deposition. Docket No. 240 at 3-4.

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The Court finds that Defendant’s failure to attend his deposition was not substantially justified

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and that an award of fees and costs is not unjust in this instance. Plaintiff’s counsel made clear far

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in advance their intention to depose Plaintiff between December 5 and 15, 2016, by e-mailing

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Unless otherwise stated, references to “Rules” denote the Federal Rules of Civil Procedure.
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Defendant’s former counsel on September 27, 2016. Docket No. 238-2 at 2. Moreover, Defendant

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does not dispute the fact that his former counsel advised him of that e-mail. See, e.g., Docket No.

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238-11 at 3. Additionally, as Plaintiff submits, Defendant provided a series of inconsistent reasons

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for resisting being deposed. See Docket No. 238-9 at 2-3 (citing, on December 7, 2016, end of year

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travel as a reason not to attend the deposition); Docket No. 238-10 at 2 (stating, on December 8, 2016,

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that vague psychological issues prevented him from being deposed); Docket No. 238-12 at 2

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(notifying Plaintiff’s counsel, less than one hour before the duly noticed deposition, that he was at

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urgent care). Further, the treatment notes from Defendant’s urgent care visit refer to abdominal pain

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and constipation. Docket No. 184-1 at 19. Abdominal pain bears no relation to the alleged

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psychological issues that Defendant mentioned days before his visit to the urgent care center and the

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treatment provider’s notes suggest that his medical condition was not necessarily as urgent as he

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submits. See id. Defendant has also provided a puzzling medical certificate stating that he was

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unable to work from December 15 to December 17, 2016, yet was also able to return to work on

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December 15, 2016. Docket No. 240 at 15.

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Defendant’s general resistance to fulfilling his discovery obligations in the instant case also

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undermines any assertion that he was substantially justified in failing to attend his deposition. As

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Plaintiff submits, Defendant did not respond to Plaintiff’s efforts to schedule the December 2016

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deposition until he received the deposition notice. See, e.g., Docket No. 238-8 at 2. Additionally,

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on January 20, 2017, the Court held a pretrial conference that was necessitated by the repeated failure

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of Defendant and his co-defendant to participate in the discovery process, which included Defendant’s

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failure to appear at the December 15, 2016 deposition. Docket No. 190 at 5-9; Docket No. 206. In

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sum, the Court finds that Defendant’s pattern of evasion, inconsistent statements, and general conduct

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throughout the discovery process demonstrate that his failure to attend the December 15, 2016

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deposition was not substantially justified and that an award of fees and costs is therefore reasonable

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in this instance. See, e.g., Peyman v. Rayan, 2011 WL 976925, at *1-*2 (D. Nev. Mar. 18, 2011)

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(award of costs was “eminently reasonable” where party canceled deposition at the last minute due

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to a vague, inadequately explained illness and had previously engaged in discovery misconduct).

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III.

LODESTAR CALCULATION

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Having determined that Plaintiff is entitled to recover fees and costs resulting from

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Defendant’s failure to attend his deposition, the Court turns to the calculation of the fees. Reasonable

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attorneys’ fees are generally calculated based on the traditional “lodestar” method. Camacho v.

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Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). Under the lodestar method, the Court

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determines a reasonable fee by multiplying “the number of hours reasonably expended on the

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litigation” by “a reasonable hourly rate.” See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The

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lodestar figure is presumptively reasonable. Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 488

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(9th Cir. 1988).

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The party requesting attorneys’ fees must show, inter alia, that the hourly rates sought are “in

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line with those prevailing in the community for similar services by lawyers of reasonably comparable

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skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). “Affidavits of

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the [movant’s] attorney and other attorneys regarding prevailing fees in the community, and rate

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determinations in other cases, particularly those setting a rate for the [movant’s] attorney, are

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satisfactory evidence of the prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge

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Corp., 896 F.2d 403, 407 (9th Cir. 1990). The Court may also rely on its own familiarity with the

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rates in the community to analyze those sought in the pending case. Ingram v. Oroudjian, 647 F.3d

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925, 928 (9th Cir. 2011). “Rate determinations in other cases in the District of Nevada have found

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hourly rates as much as $450 for partners and $250 for an experienced associate to be the prevailing

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market rate in this forum.” Crusher Designs, LLC v. Atlas Copco Powercrusher GmbH, 2015 WL

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6163443, at *2 (D. Nev. Oct. 20, 2015) (report and recommendation adopted by Navarro, C.J.).

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“Courts awarding attorneys’ fees in intellectual property or other complex cases routinely award fees

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based on rates within that range.” Id. “As for very experienced paralegals, the prevailing rate is in

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the range of $125.” Id. (internal citation omitted).

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The Court finds the pending motion and supporting materials insufficient to conduct the

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lodestar analysis at this time. Plaintiff provides biographical information about attorneys Gregory T.

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Lawrence and Michael R. Kealy, which will enable the Court to determine whether their requested

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hourly rates are reasonable. See, e.g., Docket Nos. 238-17, 238-18. However, Plaintiff’s billing

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records also reveal entries by “TMM” and “KSK.” See, e.g., Docket No. 238-19 at 9; Docket No.

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238-21 at 2. Plaintiff does not provide any information about the identities, experience, and

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qualifications of these two individuals. See generally Docket No. 238; Docket Nos. 238-1–238-22.

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Without such information, the Court cannot determine whether their requested hourly rates are

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reasonable.

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IV.

CONCLUSION

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For the reasons stated above, the pending motion for sanctions is hereby GRANTED in part.

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Docket No. 238. Plaintiff shall file, no later than May 5, 2017, a renewed motion for attorneys’ fees

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that provides all information necessary under the Rules and the case law for the Court to conduct a

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proper lodestar analysis. If the renewed motion fails to comply in full with the Rules and the case

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law, the Court will deny Plaintiff’s request for fees.

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IT IS SO ORDERED.

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DATED: April 5, 2017

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___________________________________
NANCY J. KOPPE
United States Magistrate Judge

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