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OZEHMEBHOYA v. EDISON PARKING

United States District Court, S.D. New York


December 13, 2004.

EROMOSELE OZEHMEBHOYA, Plaintiff,
v.
EDISON PARKING, INC., Defendant.

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter has been referred to me to resolve certain discovery disputes.

On July 10, 2003, I issued an Order (Docket Item 10) as a result of a discovery conference held on July 9, 2003 awarding defendant costs and attorney's fees in connection with a discovery application made by defendant in June 2003 and also awarding costs and attorney's fees in connection with plaintiff's failure to appear for his deposition on two occasions. My July 10, 2003 Order directed defendant to submit an affidavit itemizing its costs and expenses no later than July 18, 2003 and directed plaintiff to respond by July 25, 2003.

  My rulings were prompted, in principal part, by plaintiff's unexplained failure, despite telephonic and written notice, to appear at the July 9 conference and his failure to respond to defendant's contentions concerning discovery. When plaintiff's counsel did not appear in a timely manner, my staff called his office and left a message on an answering machine. In addition, I delayed the start of the conference for about thirty-five minutes in case plaintiff was stuck in traffic or on mass transit. Despite these accommodations, nothing was heard from plaintiff's counsel prior to the start of the conference. In order to ensure that plaintiff would be given an opportunity to be heard, my July 10, 2003 Order also provided:

As I indicated on the record on the morning of July 9, 2003, I shall revisit [my rulings herein] if plaintiff's counsel has good cause for his failure to appear. Law office failure or plaintiff's counsel's failure to note the July 9, 2003 conference on his calendar will not constitute good cause.
(Emphasis in original.)

  Defendant timely submitted an affidavit itemizing the costs it incurred as a result of plaintiff's failures to appear for his depositions and its fees incurred it making the discovery application that was resolved at the July 9 conference. In opposition, plaintiff submitted a letter to my chambers which is dated July 25, 2003 but was not delivered to my chambers until August 4, 2003. The letter from plaintiff's counsel is unsworn and does not appear to have been served on defendant's counsel; there is no affidavit of service and no "cc:" to defendant's counsel is indicated although prior correspondence from plaintiff's counsel contained such notation. In his letter, plaintiff's counsel claims that he was unable to attend the July 9 conference because he was in Florida on vacation on July 8 and that his return flight was canceled due to an unspecified "security breach." Counsel claims that he returned to New York "by road," and did not arrive in New York until 10:00 a.m. on July 9. Counsel goes on to claim that he called "the court" as soon as he arrived in New York, but "was advised that it was already too late and that the court would issue an order." Plaintiff's counsel has attached no documentation to his July 25 letter corroborating his claim of a canceled flight (no canceled ticket or receipt), no rental car contract and no bus ticket receipt. He also does not explain why he did not call the Court or his adversary on July 8 when the transportation problem first became known to him, nor does he explain why he did not come to court at 10:00 a.m. on July 9 when he returned to New York. Plaintiff's counsel also fails to explain why he did not call the Court before 10:00 a.m. on July 9.

  I accord plaintiff's counsel's letter of July 25 no weight. First, it does not appear to have been served on defendant's counsel in violation of Fed.R.Civ.P. 5(a). Second, it is unsworn. Third, it was not submitted in a timely manner and appears to have been back-dated. Fourth, given the seriousness of counsel's default — an unexcused failure to appear for a court-ordered conference — counsel's proffered explanation does not withstand analysis. There is no documentary evidence supporting the claims although there should be an airline ticket receipt, rental car contract or bus ticket receipt. There is no explanation of why counsel did not attempt to contact the Court or his adversary before the scheduled conference, when the claimed delay in counsel's return to New York first occurred. Although counsel claims to have returned to New York by 10:00 a.m. on July 9, he does not explain why he did not come directly to Court to attend the scheduled conference. Finally, my staff has no record of the telephone call counsel claims he made to Court.

  Accordingly, I conclude that counsel's explanation for his failure to attend the July 9 conference is not credible, and that there is no reason to revisit the discovery rulings I made at that time.

  As discussed on the record of the July 9 conference, plaintiff inexplicably failed to appear for his deposition on both May 9 and May 29, 2003, authorizing the court to "make such orders in regard to the failure as are just. . . ." Fed.R.Civ.P. 37(d). I conclude that an award of the attorney's fees and costs incurred by defendant as a result of plaintiff's failure to appear are just. Accordingly, with respect to plaintiff's failure to appear for his deposition, I award defendant the sum of $1,778.00, calculated as follows: Two Court Reporter's Appearance Fees*fn1 $ 186.00 Counsel's Travel Time to and from Manhattan 7.0 hrs @ $220.00/hr $1,540.00 Tolls & Parking $ 52.00

 Total $1,778.00

  In addition, since plaintiff's failure to provide the discovery that was the subject of the July 9 conference was not substantially justified, defendant is also entitled to the costs it incurred in connection with that application. I awarded defendant the sum of $742.00, in connection with the July 9 calculation, calculated as follows: Counsel's Travel Time to and from Manhattan, Time Spent at Conference 3.25 hrs @ $220/hr $ 715.00

 Tolls & Parking $ 27.00

 Total $ 742.00

  Accordingly, no later than thirty (30) days from the date of this Order, counsel for plaintiff is directed to remit to counsel for defendant the total sum of $2,520.00.*fn2

  SO ORDERED.


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