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Luna Gaming-San Diego LLC v. Dorsey & Whitney

January 27, 2009

LUNA GAMING-SAN DIEGO LLC, , PLAINTIFF,
v.
DORSEY & WHITNEY, LLP, ET AL., DEFENDANT.



The opinion of the court was delivered by: Hon. William McCurine, Jr. U.S. Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S REQUEST FOR FEES AND COSTS

On or about October 2, 2008, the Court allowed the parties to submit briefing on the following issue: Should Defendant Baker-Shenks and defense counsel be reimbursed for expenses and attorney fees incurred due to the last-minute cancellation by Plaintiff's lead counsel after Plaintiff's counsel suddenly fell ill the day before the scheduled deposition?

FACTS

The deposition of Defendant Mr. Baker-Shenk was scheduled for September 25, 2008. However, on September 24, 2008, Plaintiff's lead counsel, Edward Chapin, became suddenly ill. As a result of Mr. Chapin's sudden illness, this Court agreed via telephone conference to continue the deposition. This Court ordered the deposition to take place in San Diego and that the deposition date be set for a mutually convenient time so long as it was completed no later than mid-November. Plaintiff agreed to pay the out-of-pocket costs Mr. Baker-Shenk incurred as a result of this cancellation, including plane and hotel fare. Those costs amounted to $1,263: specifically, $506 in airfare, $29 for ground transportation, $22 for food, and $706 for lodging. During the September 24 telephone conference, Defendants requested reimbursement of additional expenses relating to attorneys fees and other expenses. This Court requested letter briefing on the issue.

DEFENDANT'S POSITION

Defendants contend that in addition to travel expenses, this Court should award defendants reasonable attorney's fees and other appropriate relief pursuant to Federal Rules of Civil Procedure 30(g)(1) and 30(d)(2) and Souther District of California Civil Rules 83.4(a)(1) and 83.1(a). More specifically, defendants request reimbursement on the following expenses:

(1) $7,600 in expenses for the loss of two, full work days, eight hours per day at Mr. Baker-Shenk's normal billing rate of $475 per hour for time spent traveling to and from San Diego based on the assertion that Defendant could have spent such time working on other matters;

(2) $1,800 for additional (conservatively estimated) attorney's fees incurred because of the need for re-preparation by defense counsel for the re-scheduled deposition as a result of Plaintiff's cancellation; and

(3) $3,800 in expenses for the loss of an additional day of work by Mr. Baker-Shenk because of the need for his deposition re-preparation for the rescheduled deposition as a result of Plaintiff's cancellation.

PLAINTIFF'S POSITION

Plaintiff has no quarrel with reimbursing the $1,263 of out-of-pocket expenses incurred as a result of the cancellation. However, Plaintiff argues Mr. Chapin's cancellation of the September 25, 2008 deposition did not cause Defendants to incur additional expenses. Therefore, Plaintiff contends Defendants should not be awarded the following expenses:

(1) $7,600 for the loss of two full work days by Defendant, Mr. Baker-Shenk.

Plaintiff contends Defendants did not provide Baker-Shenk's actual billing records for those two days or a statement to the effect that Baker-Shenk billed no time to clients during these two days. Plaintiff also contends that, even if Baker-Shenk did spend some or all of his travel time idle, the decision not to work during transit was his prerogative and should not be imposed on Plaintiff. In case this Court feels inclined to reimburse Baker-Shenk for some portion of his travel time, Plaintiff argues the time should not be reimbursed at Baker-Shenk's full hourly ate of $475.

(2) $3,800 for the purported loss of an additional day of Baker-Shenk's time for "refresher" deposition training and $1,800 for the anticipated attorney's ...


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