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Uche v. Montgomery Hospice, Inc.

United States District Court, D. Maryland

January 14, 2015

MAUREEN UCHE, Plaintiff,
v.
MONTGOMERY HOSPICE, INC.; ROBERT WASHINGTON, Defendants.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

On October 10, 2014, this Court issued a Memorandum (ECF 97) and Order (ECF 98), in which it determined that defendants Montgomery Hospice, Inc. and Robert Washington are entitled to reasonable attorneys' fees and costs from plaintiff Maureen Uche, as a sanction for her unjustified failure to attend a court-ordered deposition on July 10, 2014 (the "Deposition").[1] That order to attend followed two earlier deposition dates, where Uche either failed to appear or appeared but did not respond to questions.

In ECF 98, the Court directed defendants to submit an affidavit and materials in support of a request for fees and costs. It also permitted plaintiff to respond to defendants' submissions, in which she could "(a) dispute the amount and/or reasonableness of the fees, or (b) provide a factual basis on which the Court may find that imposition of fees would be unfair or unwarranted." Id.

Defendants submitted the Affidavit of Michael J. Neary, Esquire, an attorney for defendants, on October 24, 2014. ECF 100 ("Third Neary Aff."). Neary stated that defendants sought to recover $2, 470.00 in legal fees and $500 in costs. Id. ¶ 7. In response, plaintiff filed a "Motion to Strike the Defendants' Affidavit (ECF 100)." ECF 104 ("Response"). Defendants replied. ECF 105 ("Reply").

Defendants' request is ripe for consideration, and no hearing is necessary to resolve the matter. See Local Rule 105.6.[2] For the reasons that follow, I will grant defendants' request, in part.

Factual Background

The facts and rationale supporting the award of fees and costs are recounted in my Memorandum (ECF 97) at pages 2-8. In brief, three depositions were scheduled for Uche. The first, which Uche did not attend, was scheduled for October 21, 2013. See ECF 34-2 (deposition transcript of Oct. 21, 2013); ECF 34-2 at 17 (notice of deposition). Defendants filed their first motion for sanctions in response to Uche's failure to attend. ECF 32 (motion). Judge Day held a hearing on the motion on January 23, 2014, which Uche attended. ECF 59 (transcript of hearing). Judge Day denied the motion and scheduled a second deposition for February 4, 2014. Id. at 52-54. Uche attended the second deposition, but stonewalled defendants' questions, despite two telephonic orders from Judge Day directing her to answer certain questions. ECF 53-4 at 26:3-50:6, 187:9-206:4 (deposition transcript). Soon after, defendants filed a second motion for sanctions, based on Uche's behavior at the deposition on February 4, 2014, and in relation to a flurry of discovery motions filed by Uche. ECF 53 (motion). On July 1, 2014, Judge Day held a hearing on the motion, which Uche did not attend. ECF 80 (transcript of hearing). During the hearing, Judge Day set July 10, 2014, as Uche's third scheduled deposition date. Id. at 14.

Plaintiff received four separate court orders obligating her to attend her Deposition on July 10, 2014. See ECF 70 (Order of Magistrate Judge Day dated July 1, 2014); ECF 73 (Order of Judge Hollander dated July 2, 2014); ECF 75 (Order of Judge Hollander dated July 8, 2014); ECF 78 (Order of Judge Hollander dated July 9, 2014). Nevertheless, plaintiff did not attend that Deposition, see Deposition Transcript of July 10, 2014, ECF 81-3, nor she did she justify her failure to do so. See, e.g., ECF 85 at 1 (plaintiff's opposition to motion to dismiss as sanction). For example, she said: "This case... is not about depositions; therefore this case must be allowed to move to trial." Id. (emphasis in original). As a sanction, pursuant to Fed.R.Civ.P. 37, I dismissed plaintiff's claims, without prejudice, and determined that defendants were entitled to an award of legal fees and costs associated with the Deposition. See ECF 97; ECF 98.

At the time of my determination, defendants had two other outstanding requests for attorneys' fees, which were pending before Magistrate Judge Charles B. Day, see ECF 83-2, ECF 84, to whom this case had been referred for discovery disputes. ECF 31 (referral order).

At a hearing held on July 1, 2014, Judge Day indicated that he might grant defendants an award of fees incurred during discovery, but stated that he was not "inclined" to do so if this Court granted defendants' motion to dismiss. See ECF 80 at 9 (transcript of hearing). In connection with that request, defendants submitted two affidavits from Michael Neary, Esquire, an attorney for defendants. ECF 83-2; ECF 84. The first affidavit pertained to a request to recover $2, 574.00 in attorneys' fees incurred in responding to ECF 58, titled "Plaintiff's Motion for Protective Relief with Respect to Deposition and to Quash the Defendants' Good Faith Certification and Motion to Compel Deposition Answers (ECF 53)." See ECF 83-2 ("First Neary Aff."). The second affidavit, ECF 84 ("Second Neary Aff."), sought to recover an additional $11, 609 in fees in connection the plaintiff's first two depositions (one which she failed to attend and one in which she stonewalled, see Note 3), with responses to certain other discovery motions, and for Neary's attendance at a court hearing that plaintiff did not attend on July 1, 2014. See ECF 80 (transcript of July 1, 2014 hearing).

Plaintiff filed a motion to strike the second affidavit. ECF 89 (motion to strike affidavit at ECF 84). Defendants filed an opposition. ECF 91. Judge Day denied the motion in a paperless order entered September 29, 2014, "for the reasons set forth in Defendants' Opposition." ECF 96 (docket entry).

As stated, on October 10, 2014, this Court granted defendants' motion to dismiss the complaint as a sanction for plaintiff's repeated failure to obey court orders. ECF 97; ECF 98. On October 21, 2014, Judge Day awarded defendants $2, 475, for legal fees incurred in responding to one of plaintiff's discovery motions. See ECF 58 (plaintiff's motion for protective order); ECF 83 (defense motion for fees); ECF 99 (Memorandum of Judge Day); see also Uche v. Montgomery Hospice, Inc., ELH-13-878, 2014 WL 5382335 (D. Md. Oct. 21, 2014) (same).

Defendants' request before me now is very similar to the requests they submitted to Judge Day. There, as here, defendants supported their request for fees with an Affidavit from Michael J. Neary, Esquire. See ECF 99 at 6 (Memorandum of Judge Day); ECF 100 ("Third Neary Aff."). Defendants did not and do not seek recovery of fees paid for the work of their other attorney on this case, Marc Engel, Esquire. See ECF 99 at 6; ECF 100, Third Neary Aff. ¶ 5. Neary has stated a billable rate of $260.00 per hour for work on this case. He has been admitted to the bar for seven years, Third Neary Aff. ¶ 2, and in private practice since September 2007. Third Neary Aff. ¶ 1.

In considering defendants' prior request, Judge Day capped Neary's billable rate at $250 per hour, in keeping with the guidelines contained in Appendix B of the 2011 Local Rules. As discussed, infra, Judge Day stated that where a party does not provide evidence regarding local market rates, the Court's "Local Rules provide guidelines for determining the applicable hourly rates in Maryland during the" period when the work was completed. ECF 99 at 5. Prior to July 1, 2014, when revised Local Rules went into effect, the guidelines ...


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