Santos v. Highland AL-MC GP, LLC

          Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

          CIVIL MINUTES-GENERAL

         Proceedings: Order Granting In Part Defendant's Motion for Fees and Costs and for Sanctions for Discovery Abuses [Dkt. 18]

         On October 17, 2019, Defendant Highland AL-MC GP, LLC as General Partner of Highland AL-MC Group, Limited Partnership, dba Brightwater Senior Living of Highland, (“Defendant”) filed a Motion for Fees and Costs and for Sanctions for Discovery Abuses (“Motion”) seeking to recover fees and costs pursuant to Federal Rule of Civil Procedure 30(g) (“Rule 30(g)”) in the amount of $6, 329.00 and for fees incurred in bringing the instant Motion. ECF Docket No. (“Dkt.”) 18. For the reasons set forth below, Defendant's Motion is granted in part.

         I. BACKGROUND

         On October 5, 2018, Plaintiff Sandy Santos (“Plaintiff”) initiated this action by filing a Complaint for Damages for Disability Discrimination in Employment, Wrongful Termination, and Related Claims (“Complaint”) in the San Bernardino County Superior Court. Dkt. 1, Ex. A. On November 5, 2018, Defendant filed an Answer. Dkt. 1, Ex. B. On November 7, 2018, Defendant removed the action to this Court. Dkt. 1.

         On February 14, 2019, the Court issued a Scheduling Order setting a discovery cut-off (including hearing of discovery motions) of September 30, 2019 and trial for February 4, 2020. Dkt. 13.

         On Friday, September 20, 2019, Plaintiff served a deposition notice with three subpoenas commanding the appearance of nonparty witnesses, Taylor Shreve, Melissa Espitia, and Jennifer Lee, for deposition on September 30, 2019 at Plaintiff's counsel's office in Los Angeles. Dkt. 18-2, Declaration of Haley Morrison (“Morrison Decl.”), ¶ 2, Ex. 1; Dkt. 22-1, Declaration of Zach McCort (“McCort Decl.”), ¶ 4.

         On September 24, 2019, Plaintiff's counsel's litigation assistant, Zach McCort, confirmed with the messenger service that “service of deponents was proceeding.” McCort Decl., ¶ 4, Ex. 3.

         On Friday, September 27, 2019, McCort emailed Defendant's counsel to see if there were any “updates” regarding the depositions. Morrison Decl., ¶ 6, Ex. 4. Defendant's counsel responded that she “plan[ned] to be there Monday” and requested to be notified as soon as possible if “the deponents (or any one of them) does not plan to attend . . . so that I can adjust my travel arrangements.” Id.

         On Sunday, September 29, 2019 at 7:01 p.m., while Defendant's counsel was en route to Los Angeles from her office in Portland, Oregon, McCort sent an email stating, “We have not as of yet confirmed service of deponents. I will keep you updated ..... ” Morrison Decl., ¶ 7, Ex. 4; McCort Decl., ¶ 8. Defendant's counsel promptly responded that she was en route to Los Angeles and “did not understand that service had not even been perfected; I thought you just didn't know whether they are planning to attend.” Morrison Decl., ¶ 7, Ex. 4.

         On Monday morning, September 30, 2019, Plaintiff's counsel received confirmation from the messenger service that Ms. Lee had been served at 9:00 a.m. on Sunday, September 29, 2019. McCort Decl., ¶ 10, Ex. 9.

         On Monday, September 30, 2019, when Defendant's counsel arrived at Plaintiffs' counsel's office for the depositions, she was informed that Ms. Lee had been served, but did not intend to appear. Morrison Decl., ¶ 9. Plaintiff's counsel then arrived and explained that service had not been perfected on the other two witnesses and no depositions would go forward that day. Id. Plaintiff's counsel told Defendant's counsel, “if I had known the preceding Friday that none of the deponents had been served, I would have told [Defendant's counsel].” Dkt. 22-1 at 6-7, Declaration of Geoffrey Lyon (“Lyon Decl.”), ¶ 2. Defendant's counsel rescheduled her return travel and flew back to Portland that afternoon. Morrison Decl., ¶ 10.

         On October 1, 9, and 11, 2019, Defendant's counsel sent Plaintiff's counsel emails attempting to meet and confer regarding reimbursing her for the expense of traveling to the depositions. Morrison Decl., ¶¶ 11-13, Exs. 6, 7.

         On October 17, 2019, Defendant filed the instant Motion. Dkt. 18. On October 31, 2019, Plaintiff filed an Opposition. Dkt. 22. On November 6, 2019, Defendant filed a ...