Williams v. Gyrus ACMI, LP et al, No. 5:2014cv00805 - Document 197 (N.D. Cal. 2016)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 148 DEFENDANTS' MOTION FOR TERMINATING AND MONETARY SANCTIONS. Signed by Judge Beth Labson Freeman on 11/22/2016. (blflc2S, COURT STAFF) (Filed on 11/22/2016)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 PAMELA WILLIAMS, 7 Case No. 14-cv-00805-BLF Plaintiff, 8 v. 9 GYRUS ACMI, LP, et al., 10 Defendants. [Re: ECF 148] 11 United States District Court Northern District of California ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR TERMINATING AND MONETARY SANCTIONS 12 Now pending before the Court is Defendants’ Gyrus ACMI, LP (“Gyrus”) and Olympus 13 14 Corporation of the Americas (“Olympus”) (collectively, “Defendants”) motion for terminating and 15 monetary sanctions for the failure of Plaintiff Pamela Williams to appear for her deposition. Mot., 16 ECF 148. After carefully considering the pleadings and the evidence submitted by the parties, and 17 having had the benefit of oral argument on November 15, 2016, the Court GRANTS IN PART 18 Defendants’ motion for monetary sanctions and DENIES Defendants’ motion for terminating 19 sanctions. 20 I. BACKGROUND On September 1, 2016, after a Court-imposed stay was lifted on August 31, 2016, and after 21 22 Defendants had attempted to obtain Plaintiff’s deposition for nearly a year,1 Defendants noticed 23 Plaintiff’s deposition for September 22, 2016. Ex. P to Mot., ECF 148-1. The next day, 24 Defendants requested to meet with Williams for an in-person meet and confer meeting. Ex. Q to 25 Mot., ECF 148-1. Plaintiff agreed to meet on September 12, 2016. Mot. 4; Ex. R to Mot., ECF 26 148-1. Defendants’ counsel flew to Oakland to meet with Williams, who agreed to make herself 27 28 1 Defendants have noticed Plaintiff’s deposition on six occasions. Mot. 1. 1 available for deposition on September 23, 2016. Mot. 4–5. After the in-person meeting, 2 Defendants noticed Plaintiffs’ deposition for September 23, 2016. Mot. 5; Ex. S to Mot., ECF 3 148-1. The day before the deposition was scheduled to begin, however, Williams informed 4 Defendants’ counsel that she did not intend to appear because she was “in negotiations with new 5 counsel.” Mot. 1. In response, Defendants informed Plaintiff of their intention to pursue all 6 remedies available under the law. Id. 7 Through the motion now before the Court, Defendants seek terminating sanctions and monetary sanctions for $6,757.88 to reimburse Defendants for the expenses they have incurred. 9 Id. at 2. Specifically, Defendants seek monetary sanctions for the following expenses: (1) the non- 10 refundable cost of two hotel rooms at the Marriot in Downtown Oakland ($687.52) for September 11 United States District Court Northern District of California 8 22, 2016; (2) four hours of attorney time incurred in preparing for deposition ($1,400); (3) the 12 costs associated with defense counsel flying to Oakland to meet and confer with Plaintiff 13 regarding a deposition date ($1,870.36, comprised of airfare and four hours of attorney time); and 14 (4) a portion of the time spent bringing this motion for sanctions ($2,800). Mot. 10; Damron- 15 Hsiao Decl. ¶¶ 31–34, ECF 148-1. 16 The Court held a case management conference (“CMC”) on October 24, 2016, to discuss 17 Defendants’ motion for terminating and monetary sanctions, among other pending motions. ECF 18 163. At the CMC, the Court determined that Williams should be allowed the opportunity to cure 19 the circumstances leading to the motion for terminating sanctions. Thus, the Court required the 20 parties to propose a mutually acceptable date for Williams’ deposition. Upon that agreement, the 21 Court memorialized that date in a court order requiring Williams to appear on November 3, 2016 22 for her deposition. ECF 165. At the November 15, 2016, hearing, the parties advised the Court 23 that Williams had fully complied with the order. Based upon her compliance, in opposition to 24 Defendants’ motion, Williams argues that the Court should not grant Defendants’ motion. Opp’n 25 3, ECF 167. In reply, Defendants contend that sanctions remain appropriate because Plaintiff 26 could not cure the prejudice Defendants have suffered by now sitting for her deposition. Reply 27 ISO Mot. 1, ECF 171. Regardless, and at a minimum, Defendants ask the Court to award 28 monetary sanctions to reimburse them for the attorney’s fees and out-of-pocket expenses incurred 2 1 2 because of Plaintiff’s non-appearance at her deposition. Id. at 3. II. LEGAL STANDARD Under Rule 37(d) of the Federal Rules of Civil Procedure, if a party fails to appear at her 3 deposition, the court may impose any of the sanctions authorized under Fed. R. Civ. P. 5 37(b)(2)(A), (B), and (C). In lieu of, or in addition to, those sanctions, the court shall require the 6 party failing to appear to pay the reasonable expenses (including attorney’s fees) caused by the 7 failure, unless it concludes that the failure was substantially justified or that other circumstances 8 make an award of expenses unjust. Fed. R. Civ. P. 37(d). The Court may award monetary 9 sanctions against the non-appearing party even when the failure to appear was negligent rather 10 than willful. Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985). Sanctions for failure to 11 United States District Court Northern District of California 4 appear at a deposition may be imposed even absent a prior court order. See Henry v. Gill Indus., 12 Inc., 983 F.2d 943, 947 (9th Cir. 1993) (repeated cancellations at the last minute constitute a 13 failure to appear). 14 Circumstances must “overcome the strong policy favoring disposition of cases on their 15 merits” to justify terminating sanctions. U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu 16 Constr. Co., Inc., 857 F.2d 600, 605 (9th Cir. 1988). In addition, the “harsh sanction” of 17 dismissal, even for “a party’s repeated failure to appear for deposition,” is only proper when the 18 failure “is due to the willfulness, bad faith, or fault of the party.” Stars’ Desert Inn Hotel & 19 Country Club, Inc. v. Hwang, 105 F.3d 521, 525 (9th Cir. 1997). The Court must also consider: 20 “(1) the public’s interest in expeditious resolution of litigation, (2) the court’s need to manage its 21 dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy favoring 22 disposition of cases on their merits, and (5) the availability of less drastic sanctions.” Hyde & 23 Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994) (citing Wanderer v. Johnston, 910 F.2d 652, 24 656 (9th Cir. 1990)). 25 III. DISCUSSION 26 Here, there is no indication that Williams’ failure to attend her deposition was due to 27 willfulness or bad faith. Although her failure was within her own control, the Court must consider 28 her pro se status and the fact that the case upon which Defendants rely is distinguishable and 3 1 demonstrates that dismissal is not warranted. In the case cited, Henry v. Gill Indus., Inc., 983 F.2d 2 943 (9th Cir. 1993), the plaintiff willfully violated court orders to appear for deposition. Id. at 949 3 (holding that dismissal was a proper sanction where plaintiff refused for eight months to be 4 deposed, previous sanctions failed, and plaintiff otherwise thwarted discovery). In contrast, this 5 Court has not previously sanctioned Plaintiff for discovery violations and, aside from her failure to 6 appear at her deposition, there is no evidence that Williams has otherwise obstructed discovery. A 7 terminating sanction is especially unjustified given that Williams did appear for her deposition on 8 November 3, 2016. See, e.g., Baker v. Ace Advertisers’ Serv., Inc., 153 F.R.D. 38, 40 (S.D.N.Y. 9 1992) (holding that courts may afford special solicitude to pro se litigants when considering the 10 United States District Court Northern District of California 11 imposition of sanctions). Monetary sanctions, however, are warranted. See Curt-Allen: Of the Family Byron v. 12 Lovick, No. C10-0609, 2010 WL 3122822, at *2 (W.D. Wash. Aug. 9, 2010) (“When faced with 13 litigation abuses by a pro se party, a court ‘cannot . . . decline to impose a sanction where a 14 violation has arguably occurred, simply because plaintiff is proceeding pro se.’” (citation 15 omitted)). Defendants noticed Plaintiff’s deposition five times before bringing this motion, and 16 were only able to secure her compliance after bringing this motion and a court order. Moreover, 17 Williams canceled her September 23, 2016, deposition with only 24 hours’ notice with no 18 substantial justification—she could have rearranged her meeting with new counsel or notified 19 Defendants sooner. At the hearing, in a last ditch effort to explain her failure to attend the 20 deposition, Plaintiff argued that Defendants should have known that “anything” could have 21 happened to make her miss her deposition, including a medical emergency. However, it was not 22 just “anything” that caused Plaintiff to miss her deposition; but rather, it was her conscious 23 decision to schedule a meeting during the noticed deposition. Plaintiff should pay Defendants’ 24 reasonable attorney’s fees and costs incurred as a result of that decision. 25 Here, Defendants seek $6,757.88 in attorney’s fees and costs attributed to Williams’ 26 cancellation. Defendants cite a billing rate in excess of $350 per hour and claim (1) the non- 27 refundable cost of two hotel rooms at the Marriot in Downtown Oakland ($687.52) for September 28 22, 2016; (2) four hours of attorney time incurred in preparing for Williams’ deposition ($1,400); 4 1 (3) the costs associated with defense counsel flying to Oakland to meet and confer with Plaintiff 2 regarding a deposition date ($470.36 for airfare and $1,400 for four hours of attorney time); and 3 (4) a portion of the time spent bringing this motion for sanctions ($2,800). Mot. 10; Damron- 4 Hsiao Decl. ¶¶ 31–34, ECF 148-1. The Court rules on each as follows: 1. 5 The Court awards Defendants $687.52 for the non-refundable cost of two hotel 6 rooms at the Marriot in Downtown Oakland for September 22, 2016. At the hearing, Williams 7 suggested that this expense was unreasonable because Defendants chose counsel that was not local 8 and because Defendants should have ensured their reservations were refundable. As to the former, 9 a litigant has the right to counsel of their choice, see Theranos, Inc. v. Fuisz Pharma LLC, No. 11cv-5236, 2014 WL 459714, at * 2 (N.D. Cal. Jan. 31, 2014) (acknowledging a client’s right to 11 United States District Court Northern District of California 10 counsel of their choice), and there is no duty to select local counsel to reduce potential costs to the 12 opposing party. As to the latter, Defendants explained that the reservations were refundable, but 13 the hotel required at least 48 hours’ notice. Accordingly, the Court finds that this expense is 14 reasonable. 2. 15 The Court does not award Defendants attorney’s fees for the time incurred in 16 preparing for Williams’ cancelled deposition because the preparation time was related to the 17 deposition that occurred at a later date. 3. 18 As to the $1870.36 requested by Defendants for airfare ($470.36) and four hours of 19 attorney time ($1,400) associated with defense counsel’s flight to Oakland for the in-person 20 meeting and the meeting itself, the Court awards Defendants $235.18—half of the cost of the 21 airfare—and $350 for one hour of attorney time out of the requested four hours. The Court awards 22 only a portion of the amount requested because the parties discussed more than the deposition at 23 the meeting. See Ex. Q to Mot., ECF 148-1. Regardless of the success of discussion on those 24 other matters, fees and costs are not appropriately awarded for efforts other than the failed 25 deposition here at issue.2 26 27 28 2 The Court finds that Defendants’ request for fees at a rate of $350 per hour is reasonable and entirely consistent with hourly rates charged in this district by attorneys of similar skill and experience. Moreover, Williams does not object to the rate requested. 5 4. 1 The Court awards Defendants $1,400 for four hours of attorney time spent bringing 2 this motion for sanctions. Although the motion was necessary to secure a deposition date, the 3 Court awards only a portion of the amount requested because the Court is only granting the 4 motion in part. 5 IV. 6 ORDER Accordingly, the Court GRANTS IN PART Defendants’ motion for sanctions of attorney’s 7 fees and costs and ORDERS Plaintiff Pamela Williams to pay $2,672.70 to Defendants as a 8 sanction for failing to advise Defendants in a timely manner that she could not attend the 9 September 23, 2016, deposition. Williams shall submit payment to Defendants’ counsel within 30 10 United States District Court Northern District of California 11 12 13 14 days. The Court DENIES Defendants’ motion for terminating sanctions. IT IS SO ORDERED. Dated: November 22, 2016 ______________________________________ BETH LABSON FREEMAN United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6