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Berry v. Urban Outfitters Wholesale, Inc.

United States District Court, N.D. California

February 11, 2015

DAVID BERRY, et al., Plaintiffs,
v.
URBAN OUTFITTERS WHOLESALE, INC., et al., Defendants.

ORDER REGARDING 11/18/2014 JOINT DISCOVERY LETTER BRIEF Dkt. No. 78

KANDIS A. WESTMORE, Magistrate Judge.

On November 18, 2014, the parties submitted a joint discovery letter brief concerning Plaintiffs' request to recover attorneys' fees for travel taken to depose Defendant Urban Outfitters Wholesale, Inc.'s 30(b)(6) witness, who did not appear at the duly noticed deposition. (11/18/2014 Joint Letter, "Joint Letter, " Dkt. No. 78 at 2.) Defendant agreed to pay Plaintiffs' travel costs, but refused to pay attorneys' fees incurred for two days of missed work. Id.

On January 15, 2015, the Court held a hearing, and after consideration of the joint letter and the parties' arguments, and for the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's request to for reimbursement of attorney's fees.

I. BACKGROUND

Plaintiffs filed this class action against Defendant Urban Outfitters Wholesale, Inc. for alleged wage and hour violations. On August 19, 2014, Defense counsel confirmed via email that October 10, 2014 would work for the 30(b)(6) deposition in Philadelphia, Pennsylvania. (Joint Letter at 1.) On September 24, 2014, Plaintiffs noticed the deposition pursuant to Federal Rule of Civil Procedure 30(b)(6). (Joint Letter, Ex. 1.) On October 6, 2014, following a lengthy meet and confer, defense counsel reconfirmed that the 30(b)(6) deposition of Defendant would go forward on October 10, 2014 in Philadelphia. (Joint Letter at 1-2.) Plaintiff responded affirmatively. (Joint Letter at 2.)

On October 8, 2014, Defense counsel requested that the deposition on October 10, 2014 start at 9:00 a.m. instead of 10:00 a.m., to which Plaintiffs agreed. (Joint Letter at 2). Aparajit Bhowmik, counsel for Plaintiffs, was in San Francisco on another matter, and had booked a flight to Philadelphia for the morning of October 9, 2014, in order to appear at the 30(b)(6) deposition scheduled for October 10, 2014 in Philadelphia. Id.

On October 8, 2014, at 9:51 p.m., counsel for Defendant confirmed the October 10, 2014 deposition. Id. On October 9, 2014, at around 7:30 a.m., Mr. Bhowmik boarded his flight to Philadelphia, scheduled to depart at 8:10 a.m. Id. Around the same time, Defense counsel sent an email at 7:21 a.m. stating that "the 30(b)(6) deponent is not comfortable going forward tomorrow" and needs to reschedule. Id.

On October 10, 2014, Mr. Bhowmik appeared at the duly noticed deposition, and took a notice of nonappearance. ( See Transcript, Joint Letter, Ex. 2.)

Counsel for Defendant paid the costs associated with Mr. Bhowmik's appearance, and later produced the 30(b)(6) deponent in San Diego, California on November 13, 2014. Counsel for Defendant, however, refused to pay any of the attorneys' fees incurred for the two days of work Mr. Bhowmik claims to have missed due to the abrupt cancellation resulting in his unnecessary travel. (Joint Letter at 2-3.) Plaintiffs contend that the total attorneys' fees amount to $8, 800, which constitutes two, eight hour days of work at $550 per hour.

On November 18, 2014, the parties filed the joint discovery letter. On January 15, 2015, the Court held a hearing and ordered Plaintiffs to submit supplemental briefing in support of Plaintiffs' requested attorneys' fee award. On January 22, 2015, Plaintiffs submitted a supplemental brief. (Pl.'s Brief, Dkt. No. 85.) On January 27, 2015, Defendant submitted a response. (Def.'s Brief, Dkt. No. 86.)

II. LEGAL STANDARD

A court must award fees and costs caused by a party's failure to appear for deposition, unless the failure was substantially justified or other circumstances make an award unjust. Fed.R.Civ.P. 37(d)(1)(A)(i); 37(d)(3). "[T]he failure to appear need not be willful, ' and the court has discretion in deciding whether sanctions should be imposed." Jefferson v. Cnty. of Napa, No. C 03-5031 SI, 2007 WL 3287847, at *1 (N.D. Cal. Nov. 5, 2007) (quoting Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985) (citing Advisory Committee Notes to Rule 37(d))).

III. DISCUSSION

A. Attorneys' Fees for ...


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