The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is a follow up to the motions to dismiss for failure to comply with prior discovery Orders by defendants Wehlage and the Allegany County Society for the Prevention of Cruelty to Animals (collectively the "SPCA defendants") (Docket No. 215) and defendants McNeill and Lakewood Veterinary Service's (collectively the "McNeill defendants") motion to dismiss for failure to prosecute (Docket No. 219). In the Report & Recommendation recommending that both motions be granted, this Court also authorized the successful movants to apply to recover their reasonable motion costs (including the SPCA defendants' costs for hosting the aborted depositions and the McNeill defendants' costs for travel to that non-event) (Docket No. 236, Report & Rec. at 23-26). Both sets of movants filed timely fee applications for Rules 37 and 16(f) sanctions (Docket Nos. 237*fn1 (McNeill defendants), 238*fn2 (SPCA defendant))*fn3 .
Familiarity with the prior proceedings is presumed from the last Report & Recommendation (Docket No. 236). Plaintiffs, a family operating a dairy farm who sued those they believed were responsible for the seizure of over 100 head of their cattle in August 2001, refused to appear at a Court-ordered deposition in December 2006. This caused the SPCA defendants, who noticed the deposition, to incur the costs for retaining a court reporter as well as motion costs, and caused the McNeill defendants to incur costs in travel from their counsel's offices in Syracuse to Buffalo for the aborted depositions (see id., Report & Rec. at 24, 26). In the Report, the Court imposed these costs, as well as movants' reasonable motion costs, as sanctions against plaintiffs and their counsel (Docket No. 236, Report & Rec. at 24-25, 26), finding that plaintiffs lacked any substantial justification for not appearing at the ordered deposition or failing to comply with Court Orders (id. at 24). As for the McNeill defendants, the Court also found that, under Rule 16(f), the Court may enter such Orders as are just when a party fails to obey a pretrial or scheduling Order, including sanctions (with reference to Rule 37 sanctions) (id. at 25). In scheduling the fee applications, the Court also wanted the parties to address apportionment of sanction liability as between plaintiffs and their counsel (id. at 26). The Court ordered the movants to submit their applications for reasonable motion costs within five business days from entry of that Report & Recommendation on January 29, 2007 (or by February 5, 2007), and plaintiffs had ten business days from filing that Report (or by February 12, 2007) to respond to those applications (id. at 27, Notice of Electronic Filing).
First, the McNeill defendants submitted their application (Docket No. 237). They seek a total of $2,129.70, for attorneys' fees in making their motion ($1,980.00) and counsel's travel expenses ($149.70) (id., McNeill Defs. Atty. Decl. ¶¶ 6, 4, Ex. A). Defense counsel cites a rate of $165 per hour for the 12 hours of work leading up to this motion (id. Ex. A), but does not state her level of experience (either in general or in federal courts) or state whether this rate is reasonable for this District. The McNeill defendants will accept the Court's apportionment of liability as between plaintiffs and their counsel (id. ¶ 8).
The SPCA defendants submitted their timely application for a total of $10,681.50 (Docket No. 238, SPCA Defs. Atty. Decl. ¶ 15). The SPCA defendants seek $3,799.00 in attorney's fees for preparing for the deposition (discounted from $6,100 to eliminate counting for dual purposes) (id. ¶¶ 3, 4, Ex. A). They also are applying for $6,882.50 in attorneys' fees relative to making their motion to dismiss (id. ¶ 5, Ex. B), again discounted (from $9,694.00), to avoid duplication (id. ¶ 6). In support of this application, their counsel (a partner at Hodgson, Russ) indicates that she spent about 8.6 hours preparing for the deposition and 15.5 hours drafting the moving papers, all at her billing rate of $210 per hour (id., Exs. A, B), a rate previously deemed reasonable by this Court (Docket No. 234, Order at 5-6). They also cite the time of an associate (a total of 43.4 hours at $150 per hour, with some time entries occasionally discounted) and paralegal (a total of 16.6 hours at $80 per hour, see Docket No. 238, SPCA Defs. Atty. Decl. ¶ 11 (noting that this rate is less than standard for paralegals at her level of experience), Ex. A) in preparing for the deposition and preparing the moving papers (id. ¶¶ 9-11, Exs. A, B). The associate was brought in to assist lead counsel in preparing for the deposition and the motion while that counsel was preparing for a trial in another case (id. ¶ 10), for which the SPCA defendants discount her time charge as a result (id., Exs. A, B). The SPCA defendants urge that liability for their fees be equally split between plaintiffs and their counsel (id. ¶¶ 13, 15), similar to the apportionment of fees awarded on a previous discovery sanction (id. ¶ 13; Docket No. 234, Order, at 10-11). They conclude by asking the Court to order payment of such sanction within fourteen days of entry of the Order imposing the sanction (Docket No. 238, SPCA Defs. Atty. Decl. ¶ 15). The SPCA defendants, however, do not claim any costs associated with obtaining a court reporter for the depositions.
Plaintiffs respond through their counsel separate documents (Docket Nos. 240, 241). Jeanne Vinal first stated that an award of costs as well as an order dismissing the Complaint was unwarranted (Docket No. 240, Vinal Decl. ¶¶ 5, 7). As for the apportionment of any potential sanction, Vinal contends that she also spent time preparing for the depositions that did not occur (id. ¶¶ 8-11). On Friday, December 1, 2006, plaintiffs asked Vinal if the depositions could be relocated or the dates changes and Vinal replied that the depositions were ordered and the schedule of party and non-party depositions was already in place (id. ¶¶ 12-13). She warned plaintiffs that if the depositions did not go forward as ordered, it would be a violation of the Court Order and make other, non-party depositions nearly impossible to complete before the then Scheduling Order deadline for discovery of December 21, 2006 (id. ¶ 13). Unbeknownst to Vinal, plaintiffs sent their December 1, 2006, fax to the Court and opposing counsel and Vinal did not get her copy during working hours that day (id. ¶ 15; see Docket No. 241, Baumgarten Reply Affirm. ¶ 12). Vinal read the plaintiffs' fax on Monday, December 4, 2006, but still believed that plaintiffs would come and not unilaterally decide to miss the proceeding (Docket No. 240, Vinal Decl. ¶ 16). When the plaintiffs did not appear that morning, Vinal called them and confirmed their non-appearance. Vinal immediately called defense counsel, including trying to reach McNeill's counsel (then en route from Syracuse). (Id. ¶¶ 17-18.) Vinal, with co-counsel Baumgarten, spent the balance of December 4 trying to convince plaintiffs to come up for the depositions (id. ¶ 19; see Docket No. 241, Baumgarten Reply Affirm. ¶ 16). They then continued during that week trying to get plaintiffs to come up for their depositions (Docket No. 240, Vinal Decl. ¶ 20; Docket No. 241, Baumgarten Reply Affirm. ¶ 17), offering to pay their gasoline charges, to identify possible forms of public transportation, or to arrange for plaintiffs to stay with the Vinals' during the course of the depositions (Docket No. 240, Vinal Decl. ¶ 21; Docket No. 241, Baumgarten Reply Affirm. ¶ 18). Despite offers to resolve the financial reasons for plaintiffs not coming, plaintiffs raised other issues, such as the fear of separating family members, the need to have someone home to tend to the animals, no neighbors or relatives were available to assist, only the parents have driver's licenses, Sandra Sheehy has a back condition that prevented long distance driving and Robert Sheehy has other medical issues (e.g., Docket No. 240, Vinal Decl. ¶ 19). "Ultimately, the Sheehys just would not come" despite counsels' pleading and admonitions (id. ¶ 23). Vinal disputes the assertion (see Docket No. 236, Report & Rec. at 17-19; see also Docket No. 235, SPCA Defs. Atty. Decl. ¶ 9 n.1) that she could have driven down to pick plaintiffs up, since the drive to plaintiffs' farm is a distance of two hours, requiring counsel to leave at 4 am for a 9 am deposition and such transportation counsel considers to be a non-disbursement expense that counsel ethically cannot pay*fn4 (Docket No. 240, Vinal Decl. ¶ 23 n.1). Plaintiffs' counsel conclude that they did everything to convince their clients to appear in Buffalo and did nothing to prevent plaintiffs' compliance with Court Orders (id. ¶ 25). Plaintiffs' counsel themselves prepared for these depositions and incurred costs (id.). Vinal argues that plaintiffs should not be sanctioned because they believed that they physically or financially could not come and plaintiffs lacked bad motive in disregarding the Order (id. ¶¶ 27, 28). Vinal points to other delays during the course of this case*fn5 (id. ¶ 31) as a factor in considering whether to impose the further sanction of costs and the fact that defendants did not pay any sanctions for their prior defaults (id.).
Co-counsel Richard Baumgarten joins in Vinal's declaration (Docket No. 241, Baumgarten Reply Affirm. ¶ 3) and repeats many of the assertions made by Vinal (see id. ¶¶ 5, 7-26). He argues that plaintiffs ignored his advise, as well as the advise of the Vinal & Vinal firm, that plaintiffs had to appear at the ordered deposition (id. ¶¶ 16-18, 20, 22, 26). After arguing the merits of dismissal of plaintiffs' claims (id. ¶¶ 28-30), Baumgarten argues that plaintiffs' counsel did not prevent their clients complying with the Order and, in fact, advised compliance and did "everything within [their] power to have the Sheehys come to the depositions" (id. ¶ 31). He concludes that, in similar cases, courts have not imposed liability upon the attorney where the client has refused to comply (id.), see, e.g., Jones v. Niagara Frontier Transp. Auth., 836 F.2d 731, 735 (2d Cir. 1987) (upholding sanction against client of dismissal, but not against attorney, where plaintiff ignored counsel's advice).
I. Reasonable Motion Costs
Under Rule 37, the movants are entitled to their reasonable costs and attorneys' fees. "If the court determines to award expenses and fees, it is for the court to decide what amount is proper." 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 666-67 (Civil 2d ed. 1994); see also Addington v. Mid-American Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (three hours at $50 per hour held excessive where opponent merely failed to make timely response to interrogatories, reducing time to one hour).
II. Imposition of Costs as Sanction at All
The first issue is whether costs as a sanction should be imposed as well as dismissal of plaintiffs' claims. Rule 37(d) allows the Court to impose these costs "in lieu of" or "in addition" to any other sanction provided in that rule. Thus, the Court may use the extreme sanction of ...