Vasquez v. Leprino Foods Co.

          ORDER GRANTING IN PART DEFENDANTS' MOTION TO RECOVER REASONABLE EXPENSES PURSUANT TO FRCP 30(G) (DOC. NO. 149)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE.

         On November 21, 2019, Defendants Leprino Foods Company and Leprino Foods Dairy Products Company (“Defendants”) filed a Motion to Recover Reasonable Expenses pursuant to Federal Rule of Civil Procedure 30(g). Defendants seek to recover fees and costs in the amount of $5, 987.38 in connection with the scheduled deposition of nonparty deponent, Ronaldo Salvo. (Doc. Nos. 149, 156.) The parties filed a Joint Statement regarding Defendants' motion on December 6, 2019. (Doc. No. 156.)

         The matter was heard on December 13, 2019, before the Honorable Barbara A. McAuliffe. Kitty Szeto appeared by telephone on behalf of Plaintiffs Isaias Vasquez and Linda Hefke. Lisa Pooley appeared in person on behalf of Defendants.

         Having considered the Joint Statement, the parties' arguments and the record on file, Defendants' motion is granted in part.

         BACKGROUND

         This wage-and-hour class action stems from Defendants' alleged custom and policy to “de crew, ” i.e., sending workers home prior to the start of their scheduled shift without pay because Defendants reportedly misjudged its production or labor needs and from Defendants' alleged policy of requiring Plaintiffs and workers to remain on call and subject to return to discuss business matters and/or return to their work stations during their rest and meal breaks if called upon to do so by supervisory personnel. (Doc. No. 61, Third Amended Complaint at ¶¶ 5, 7.)

         On June 6, 2019, Plaintiffs filed their motion for class certification. (Doc. No. 116.) Defendants opposed the motion on August 30, 2019. (Doc. No. 120.) On September 9, 2019, in anticipation of filing their reply, Plaintiffs sought the Court's leave to exceed Rule 30's ten-deposition limit to depose putative class members who submitted declarations in support of Defendants' opposition to the motion for class certification. (Doc. No. 132 at 3.) On September 25, 2019, the Court partially granted Plaintiffs' request, permitting them to conduct seven depositions of the putative class members who submitted declarations in support of Defendants' opposition to the motion for class certification. (Doc. 136). The parties were directed to meet and confer to work out a schedule for the depositions, all of which were to be completed no later than November 8, 2019. (Id.)

         Following the Court's order permitting additional depositions, counsel for the parties began communicating to set a schedule for the depositions. Once Plaintiffs identified the persons to be deposed, Defendants inquired about the deponents' availability for deposition. (Doc. 156-1, Pooley Decl. at ¶¶ 3-4, Exs. B and C.) Defense counsel communicated with Plaintiffs' counsel about each deponent's availability and whether defense counsel had been authorized to accept service of a deposition subpoena for each deponent.

         With regard to deponent Ronaldo Salvo, on October 14, 2019, Plaintiffs sought confirmation of Mr. Salvo's deposition for October 28, 2019, upon his return to work on October 25, 2019. In response, Defendants indicated that given Mr. Salvo's October 25 return to work, he would not have reasonable notice for a deposition. Defendants advised that, upon his return, they would check on his availability and let Plaintiffs' counsel know his availability for other dates. (Pooley Decl. at ¶ 9, Ex. H.)

         On October 16, 2019, Plaintiffs' counsel asked if Mr. Salvo's deposition could be scheduled for October 31, 2019. (Pooley Decl. at ¶ 10, Ex. I.) On October 21, 2019, defense counsel indicated that October 31 would not work for Mr. Salvo, but they would check on his availability. Plaintiff's counsel then sent another email asking that they check on October 30 as an alternative to October 31. (Pooley Decl. at ¶ 11, Ex. J.)

         On October 25, 2019, defense counsel learned that Mr. Salvo was not available for deposition on October 30 or 31, but he could be available on November 5, 2019. Although an offer was made to Mr. Salvo to have defense counsel accept service of a deposition subpoena on his behalf, Mr. Salvo did not authorize defense counsel to accept service on his behalf. Defense counsel notified Plaintiffs' counsel that Mr. Salvo was available on November 5, 2019. Plaintiffs' counsel confirmed the November 5 date and inquired if defense counsel would accept service on behalf of Mr. Salvo. Defense counsel responded that they had not been authorized to accept service on his behalf. (Pooley Decl. at ¶ 12, Ex. K.)

         On October 28, 2019, defense counsel received Plaintiffs' Amended Notice of Deposition of Ronaldo Salvo, which noticed his deposition for November 5, 2019 at 9:00 a.m., at Esquire Deposition Solutions in Fresno, California. (Pooley Decl. at ¶ 13, Ex. L.)

         On October 31, 2019, the parties attended the deposition of Alejandro Osuna, taken by Plaintiffs' Counsel, Kitty K. Szeto. Defense counsel Lisa M. Pooley was present at the deposition. (Pooley Decl. at ¶ 14, Ex. M.) During the deposition, Ms. Szeto inquired as to whether Mr. Osuna knew of any facts as to why Mr. Salvo would have been evading service and whether he knew of any facts to help Plaintiffs better serve him. Mr. Osuna did not provide any information in that regard. (Doc. 157, Szeto Decl. at ¶ 4.)

         On November 4, 2019, Ms. Pooley traveled from San Francisco to Fresno, which took four hours, and stayed overnight in a Fresno hotel. On the morning of November 5, 2019, Ms. Pooley went to Esquire Deposition Solutions, the location for Mr. Salvo's noticed deposition. Upon her arrival, Ms. Pooley was informed by the receptionist that the deposition was not on the calendar and that Plaintiffs had cancelled the deposition on November 1, 2019, four days earlier. Ms. Pooley then sent an email to Plaintiffs' counsel inquiring as to why Defendants had not been advised that ...