Treanor v. Marriott Laguardia Airport Hotel et al

Filing 28

ORDER granting 25 Motion for Attorney Fees. This Court grants defendants' motion for plaintiff to pay the reasonable costs, including counsel's travel time, but excluding lodging, for one of defendants' attorneys to attend the doct or's deposition in Texas. Since plaintiff may seek to tax as a cost the amounts paid if she prevails at the conclusion of the action, see Local Civil Rule 30.1, the payment of these costs should await the conclusion of the action to avoid an ot herwise unnecessary application by plaintiff to tax these costs. Therefore, at the conclusion of this action, if defendants prevail, plaintiff must pay the reasonable travel costs, as discussed above, including counsel's fee for travel of one of defendants' attorneys to attend the deposition of Dr. Shatby. Ordered by Magistrate Judge Marilyn D. Go on 10/28/2013. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LESLIE TREANOR,
Plaintiff,
MEMORANDUM & ORDER
- against CV 2012-4674 (ERK)(MDG)
MARRIOTT INTERNATIONAL, INC., et al.,
Defendants.
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Defendants move pursuant to Local Civil Rule 30.1 to compel
plaintiff to pay for defendants' reasonable expenses incurred in
traveling to take the deposition of plaintiff's medical expert
witness in Texas.

See ct. doc. 25.

Plaintiff has designated her treating orthopedic surgeon,
Dr. Meena Shatby, as a medical expert at trial.

Plaintiff

intends to take Dr. Shatby's deposition in Texas and use the
videotape of her testimony in lieu of Dr. Shatby's trial
testimony.

Since defendants represented that they would not

have taken Dr. Shatby's deposition if she were to testify at
trial, plaintiff agreed to pay the video recording fee and Dr.
Shatby's witness fee but did not agree to pay defendants' travel
expenses.
Local Civil Rule 30.1 provides that:
When a deposition upon oral examination is to be taken
at a place more than one hundred (100) miles from the
courthouse, any party may request the Court to issue an

order providing that prior to the examination, another
party shall pay the expense (including a reasonable
counsel fee) of the attendance of one attorney for each
party at the place where the deposition is to be taken.
The amounts so paid, unless otherwise directed by the
Court, may be taxed as a cost at the conclusion of the
action or proceeding.
Lcoal Civil Rule 30.1.

This Rule "allows courts to weigh the

equities of reallocating discovery costs where the strategic
choices of one party would cause another to incur inordinate
expense."

Teen Model v. Blood is the New Black, 2012 U.S. Dist.

LEXIS 161369, at *4 (S.D.N.Y. 2012).
Defendants argue that since plaintiff chose to bring suit in
New York and to designate a Texas doctor as her expert witness,
she should bear the expense of her litigation choices.
Plaintiff's primary argument in response is that defendants are
better able than plaintiff to afford to pay the costs of their
counsel's travel.

Plaintiff also argues that her choice of forum

was New York state court where generally the respective parties
would pay their own expenses.

See Goldblatt v. Avis Rent A Car

Sys., Inc., 637 N.Y.S.2d 188, 189 (2d Dep't 1996).
By choosing to use her treating physician as an expert, but
avoiding the expense of having Dr. Shatby travel to New York to
testify at trial, plaintiff has attempted to shift the cost of
Dr. Shatby's travel to defendant.

See In re Fosmax Prods. Liab.

Litig., 2009 U.S. Dist. LEXIS 27209, at *32 (S.D.N.Y. 2009).
Since the cost of defendants' travel is caused by plaintiff's

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strategic choices, it is appropriate to allocate the costs of the
deposition to the plaintiff.

Id.

Although the relative means of

the parties is a factor to be considered, it is not determinative
of the question of which party should bear the cost.

See Hoff v.

WPIX, Inc., 2012 WL 4471445, at *1 (S.D.N.Y. 2012) (considering
relative means of the parties as one factor in determination
under the totality of the circumstances).

Thus, this Court

grants defendants' motion for plaintiff to pay the reasonable
costs, including counsel's travel time, but excluding lodging,
for one of defendants' attorneys to attend the doctor's
deposition in Texas.

Presumably, defendants can provide lodging

to their counsel at one of their hotels in the area at little or
no cost.
¶ 14.

See Declaration of Timothy F. Mazaara (ct. doc. 26) at

However, since defendants would have otherwise incurred

attorneys' fees had plaintiff's treating physician appeared in
New York for a videotaped deposition, defendant shall not recover
attorney time for preparing and attending the deposition.
Model, 2012 U.S. Dist. LEXIS 161369, at *11-*12.

Teen

Travel time

shall be recoverable at one-half of defendants' counsel's
reasonable hourly rate.

Cf. Barfield v. N.Y. Health and

Hospitals Corp., 537 F.3d 132, 151 (2d Cir. 2008) (noting that
travel time is customarily compensated at 50 percent of counsel’s
hourly rate).
Since plaintiff may seek to tax as a cost the amounts paid

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if she prevails at the conclusion of the action, see Local Civil
Rule 30.1, the payment of these costs should await the conclusion
of the action to avoid an otherwise unnecessary application by
plaintiff to tax these costs.

Defendants have not argued that

they need to be reimbursed immediately.

Therefore, at the

conclusion of this action, if defendants prevail, plaintiff must
pay the reasonable travel costs, as discussed above, including
counsel's fee for travel of one of defendants' attorneys to
attend the deposition of Dr. Shatby.
SO ORDERED.
Dated:

Brooklyn, New York
October 28, 2013
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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