Aghaeepour v. Northern Leasing Systems, Inc.

Background

The court considered Defendants’ request for attorneys’ fees under Federal Rule of Civil Procedure 37(d)(3). The request followed an earlier sanctions proceeding concerning Plaintiffs Julie Higgins, Jesus Rivera, and Hong Zhang, whom the opinion calls the “Dismissed Plaintiffs.” They had failed to appear for depositions. An earlier report and recommendation was adopted by Judge Nelson S. Román on June 15, 2023.

Defendants requested $3,960 for work related to determining whether the Dismissed Plaintiffs were still participating in the case, communicating with the court, complying with a court directive, and preparing the sanctions motion. Plaintiffs’ counsel argued that an award would be unjust because Defendants knew the Plaintiffs were unavailable, the unavailability was not counsel’s fault, and some of the requested fees covered work concerning all Plaintiffs rather than only the Dismissed Plaintiffs.

Rule 37(d) Analysis

Rule 37(d)(3) generally requires the party who failed to act, the attorney advising that party, or both to pay reasonable expenses caused by the failure, unless the failure was substantially justified or other circumstances make an award unjust. The court found that Plaintiffs’ counsel had not shown either justification or special circumstances making an award unjust.

The court reasoned that the Dismissed Plaintiffs were at fault for failing to maintain contact with their counsel, which left them unaware of Defendants’ efforts to schedule depositions. The court also found that Plaintiffs’ counsel had not directly contacted them since approximately December 2019 or January 2020, and that counsel likewise shared responsibility for the resulting inability to take the depositions. The court rejected the argument that Defendants should bear the cost because they knew the Plaintiffs were unavailable.

The court noted that the Dismissed Plaintiffs’ claims had been dismissed without prejudice and that the dismissal sanction could be lifted if they appeared for depositions no later than 45 days before Defendants’ deadline to file a summary-judgment motion.

Amount of the Award

The court used the lodestar method, which calculates a fee by multiplying reasonable hours by a reasonable hourly rate. It found Defendants’ counsel’s rate of $550 per hour reasonable and found that most of the recorded time was appropriate.

The court reduced four billing entries totaling 1.9 hours because they included work only partly related, or apparently unrelated, to the Dismissed Plaintiffs. It reduced the requested award by 1.5 hours, or $825, lowering the award from $3,960 to $3,135.

Disposition

The court granted Defendants’ application for attorneys’ fees, but reduced the award to $3,135. The court assigned equal responsibility to Plaintiffs’ counsel and the Dismissed Plaintiffs. Plaintiffs’ counsel must pay $1,567.50, and the Dismissed Plaintiffs must pay the other $1,567.50. Higgins, Rivera, and Zhang are each responsible for one-third of that share, or $522.50 each.

The opinion is signed by Andrew E. Krause, United States Magistrate Judge.