United States District Court, D. Maryland
EDWARD A. BATES, Plaintiff,
MOUNTAIRE FARMS, INC., Defendant.
DAVID COPPERTHITE UNITED STATES MAGISTRATE JUDGE.
Mountaire Farms, Inc. filed a Motion for Fees and Expenses
for Failure to Pursue Deposition pursuant to Federal Rule of
Civil Procedure 30(g) due to Plaintiffs failure to proceed
with the scheduled deposition of Brian Smith on September 25,
2018. ECF No. 20. After considering the motion and response
thereto, the Court finds that no hearing is necessary.
See Loc.R. 105.6 (DM6. 2018). For the
reasons set forth herein, the Court will GRANT
Defendant's Motion (ECF No. 20) and will ORDER Plaintiff
to pay $360.00 in attorney's fees incurred by Defendant
in connection with his failure to proceed with Mr.
Mountaire Farms, Inc. is a producer in the poultry business
and runs a "Growing Program" in which it contracts
with third-party growers to raise flocks of broiler chickens.
ECF No. 1 at 2, ¶ 6; ECF No. 1-3 at 1; ECF No. 4 at 2,
¶ 6. In February 2016, Plaintiff met with
Defendant's employee and Broiler Services Manager, Brian
Smith, to discuss joining the Growing Program as a
third-party grower and signed Defendant's Broiler
Production Agreement. ECF No. 1 at 3, ¶¶ 8-9; ECF
No. 4 at 2, ¶¶ 8-9. Thereafter, Plaintiff hosted
several flocks of broilers between April 2016 and March 2017.
ECF No. 1 at 3-6, ¶¶ 10, 12, 17, 19. During this
time, Paul Akers, Defendant's employee, made regular
visits to Plaintiffs farm to conduct inspections and monitor
the care of the flocks. ECF No. 1 at 4-6, ¶¶ 13-14,
17, 20; ECF No. 1-4; ECF No. 1-5. After each visit, Mr. Akers
completed Chick Replacement Reports and Farm Visitation
Reports. ECF Nos. 1-4, 1-5.
about February 17, 2017, Plaintiff allegedly informed Mr.
Akers that he had been diagnosed with cancer and was
undergoing chemotherapy treatment. ECF No. 1 at 8, ¶ 25.
Shortly thereafter, in March 2017, Mr. Smith
informed Plaintiff that Defendant was terminating the Broiler
Production Agreement. See Id. ¶ 26; ECF No. 4
at 6, ¶ 26.
April 5, 2018, Plaintiff filed suit in this Court, alleging
that Defendant breached the Boiler Production Agreement by
failing to give Plaintiff written notice of the termination
or provide Plaintiff with the reason for the termination and
by terminating Plaintiff for his disability. ECF No. 1 at
9-11, ¶¶ 29-3. Defendant filed an answer on May 11,
2018. ECF No. 4.
discovery, Plaintiff sought to depose Mr. Akers and Mr.
Smith. See ECF No. 20-1. Counsel for the parties
agreed that Plaintiff would take the depositions of Mr. Akers
and Mr. Smith on September 25, 2018 at 2:00 PM and 4:00 PM,
respectively, at Defendant's corporate office in
Millsboro, Delaware. ECF Nos. 20-2, 20-3. On September 25,
2018, Defendant's counsel, Renee Bowen, traveled to
Millsboro, Delaware for the depositions and met with Mr.
Smith to prepare for his deposition. ECF No. 20 at
2, ¶ 5. However, due to a "clerical
error," a court reporter was not present for the
depositions. Id. ¶ 6; ECF No. 21 at 2, After
about an hour, Plaintiffs counsel secured a court reporter to
take a deposition by telephone, to which Defendant agreed.
ECF No. 20 at 2-3, ¶¶ 7-8; ECF No. 21 at 2. The
parties proceeded to take Mr. Akers's deposition but, due
to the court reporter's availability, the parties were
unable to take Mr. Smith's deposition that day. ECF No.
20 at 3, ¶¶ 9-10; ECF No. 21 at 2.
February 15, 2019, Plaintiff took Mr. Smith's deposition.
ECF No. 20 at 3-1, ¶ 13; ECF No. 20-7 at 1. That same
day, Defendant filed the Motion for Fees and Expenses for
Failure to Pursue Deposition. ECF No.20. On March 1, 2019,
Plaintiff filed an opposition. ECF No. 21. Defendant did not
file a reply and the time to do so has since passed.
matter is now fully briefed, and the Court has reviewed
Defendant's Motion for Fees and Expenses, as well as the
response thereto. For the following reasons, Defendant's
Motion for Fees and Expenses (ECF No. 20) will be GRANTED and
the Court will ORDER Plaintiff to pay $360.00 in
attorney's fees incurred by Defendant in connection with
his failure to proceed with the deposition of Mr. Smith as
scheduled on September 25, 2018.
Motion, Defendant seeks $3, 180.00 in attorney's fees
associated with Plaintiffs failure to pursue the deposition
of Mr. Smith as well as $320.00 in costs associated with Mr.
Smith's preparation for and attendance at the deposition
scheduled for September 25, 2018 pursuant to Federal Rule of
Civil Procedure 30(g)(1). ECF No. 20 at 5, 7. Failure to
proceed with a properly noticed deposition is sanctionable
under Rule 30(g)(1), which states in relevant part: "A
party who, expecting a deposition to be taken, attends in
person or by an attorney may recover reasonable expenses for
attending, including attorney's fees, if the noticing
party failed to: (1) attend and proceed with the
deposition." Fed.R. Civ.P. 30(g)(1). However, this Court
has previously held that fees and costs incurred in
preparation for the deposition or which otherwise would have
been incurred whether or not the deposition went forward are
not recoverable. Gordon v. New Eng Tractor Trailer
Training Sck, 168 F.R.D. 178, 180 (D. Md. 1996)
(declining to award the defendant fees for counsel's
preparation for the original deposition or costs that would
have been incurred whether or not plaintiff appeared for his
deposition). Neither Defendant nor Plaintiff provided any
legal argument or legal support for their respective
positions. This Court has great discretion in awarding
attorneys' fees and sanctions in discovery disputes.
Poole ex re I. Elliott v. Textron, Inc., 192 F.R.D.
494, 497 (D.Md. 2000) ("[T]his Court has authority to
redress discovery misconduct under the Federal Rules as well
as under its inherent powers, and can impose a range of
sanctions [, including] award of expenses against both a
party and its counsel, ...").
30(g) "implicitly requires this Court to make a finding
that the attorney's fees and costs which [D]efendant
requests are reasonable before ordering [P]laintiff to pay
such fees." Gordon, 168 F.R.D. at 180.
Defendant's counsel, Ms. Bowen, submitted an affidavit in
support of the attorney fee award, stating that her hourly
rate is $200.00 in this matter. ECF No. 20-4 at 1, ¶ 6.
The Court finds that this rate is reasonable. However, it
appears from the breakdown of attorney's fees in the
"Attorney Fee Statement" which Defendant submitted
with its Motion that Defendant is including fees for the
initial preparation for the deposition as well as fees that
would have been incurred whether Mr. Smith's deposition
had gone forward on September 25, 2018 or not. See
ECF No. 20-5.
the "Attorney Fee Statement" reflects fees for Ms.
Bowen's preparation for the deposition ($340.00), as well
as time spent preparing Mr. Smith for his deposition
($420.00). Id. It also reflects fees for Ms.
Bowen's travel toand from the deposition location ($1,
040.00) and her appearance at the deposition for Mr. Smith
($280.00). Id. In light of the guidance in
Gordon, the Court will subtract these fees. The fees
associated with Ms. Bowen's preparation and her
preparation of Mr. Smith are fees that would have been
incurred whether or not Plaintiff had pursued the deposition
on September 25, 2018 because both Ms. Bowen and Mr. Smith
"would have had to prepare at least once for the
deposition." Gordon, 168 F.R.D. at 180. For
these reasons, the Court will also decline to award $320.00
in costs for Mr. Smith's time and preparation.
Additionally, the costs of travel will be subtracted as Ms.
Bowen traveled to the deposition location for two
depositions, those of Mr. ...