United States District Court, E.D. Virginia, Alexandria Division
THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendant's First Motion
for Attorney Fees and Costs (Dkt. 50), Second Motion for
Attorney Fees and Costs (Dkt. 58), Defendant's First
Motion for Sanctions (Dkt. 37), and Defendant's Third
Motion for Sanctions (Dkt. 56). On November 13, 2018, the
district judge dismissed the case for Plaintiffs failure to
prosecute (Dkt. 60). Plaintiff had failed to respond to the
district judge's Show Cause Order. Prior to dismissal,
the undersigned entered an order on October 17, 2018, stating
that the undersigned would take Defendant's Motion for
Sanctions (Dkt. 37) "under consideration in conjunction
with any future motions Defendant may file regarding
Plaintiffs failure to attend his upcoming deposition, as well
as Defendant's statement of fees and costs incurred in
bringing its Motions to Compel" (Dkt. 42).Now, the
undersigned addresses and awards, in part, those requests for
attorney's fees and costs.
First Motion seeks attorney's fees and costs incurred in
pursuing its Motion to Compel Discovery (Dkt. 25), Emergency
Motion to Compel Plaintiff to Meet and Confer and to Attend
his Deposition (Dkt. 28), and Emergency Motion to Extend
Discovery and Compel Plaintiffs Deposition (Dkt. 32).
Defendant counsel's total fees for those three (3)
motions is $4, 379. Defendant's Second Motion seeks
attorney's fees and costs incurred in connection with its
two (2) Motions for Sanctions (Dkt. 37, 47). Defendant
counsel's total fees for those Motions is $2,
Defendant's First Motion for Sanctions seeks monetary
sanctions in the form of $574 in attorney's fees and $706
in costs. Defendant's Third Motion for Sanctions
seeks $706 in costs. In support of its requests for fees and
costs, Defendant provides attorney declarations, itemized
charts of the legal services performed, and copies of
Rule of Civil Procedure 37(a)(5)(A) provides that, if a court
grants a motion to compel, then "the court must...
require the party or attorney advising that conduct, or both
to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees."
Fed.R.Civ.P. 37(a)(5)(A). Therefore, should a court grant a
motion to compel, it may only decline to award reasonable
expenses if one of a limited number of exceptions apply.
Id. Here, the Court granted two of Defendant's
Motion to Compel and denied another (Dkts. 30,
Because the Court finds that none of the Rule's
enumerated exceptions apply, the Court shall award Defendant
attorney's fees for those two Motions (Dkts. 25, 32) upon
a determination that they are reasonable.
Court finds that Defendant's counsel reasonably spent
10.3 total hours in connection with the Motions to Compel,
consisting of 4.5 hours by Linda Otaigbe (Otaigbe Decl.
¶¶ 4, 6), and 5.8 hours by Charles M. Elmer (Elmer
Decl. ¶ 4). Ms. Otaigbe is an associate and her hourly
billing rate in this case is $255. (Otaigbe Decl. ¶ 2.)
Mr. Elmer is a partner and his hourly billing rate in this
case is $295. (Elmer Decl. ¶ 2.) After reviewing
counsel's itemized time entries as well as the twelve
factors to be considered when determining the reasonable
billing rate and hours,  see Robinson v. Equifax Info.
Servs.. LLC. 560 F.3d 235, 243-44 (4th Cir. 2009), the
Court finds that Defendant should be award $2, 858.50 in
terms of sanctions, Rule 37(d) allows for an award of
sanctions if a party fails to attend its own deposition. See
Fed.R.Civ.P. 37(d)(1)(A)(i) ("[A court] may order
sanctions if: a party fails ... after being served with
proper notice, to appear for that person's
deposition."). Sanctions include requiring the
"party failing to act" to pay reasonable expenses,
including attorney's fees." IcL Additionally, Rule
37(b)(2)(C) states that should a court find that a party has
failed to obey a discovery order, "the court must order
the disobedient party ... to pay the reasonable expenses,
including attorney's fees, caused by the failure."
Fed.R.Civ.P. 37(b)(2)(C). A court may only decline to award
expenses if "the failure was substantially justified or
other circumstances make an award of expenses unjust."
Id. Before awarding sanctions, a court must also
consider whether "(1) whether the non-complying party
acted in bad faith, (2) the amount of prejudice that
noncompliance caused the adversary, (3) the need for
deterrence of the particular sort of noncompliance, and (4)
whether less drastic sanctions would have been
effective." Anderson v. Found. for Advancement.
Educ. and Emp't of Am. Indians. 155 F.3d 500, 504
(4th Cir. 1998).
case, Plaintiff failed to attend his deposition scheduled for
October 8, 2018, after being properly noticed by Defendant.
Although Defendant did unilaterally set the time, date, and
location of the deposition, the Court already determined that
Defendant's actions were appropriate given Plaintiffs
recalcitrance (Dkt. 30). As a result of Plaintiff s failure
to attend, attorney's fees and costs were unnecessarily
expended by Defendant's counsel. (Dkt. 38 at 6-7, Ex. E.)
Moreover, upon review of Defendant's invoices and time
expended, the Court finds that Defendant's expenses are
reasonable. Therefore, Defendant should be awarded $1, 280 in
attorney's fees and costs due to Plaintiffs unjustified
failure to attend his deposition on October 8, 2018.
Similarly, Plaintiff also refused to attend his court-ordered
October 25 deposition causing Defendant to once again
unnecessarily incur the cost of hiring a court reporter and
videographer. (Dkt. 57 at 4-6, Ex. B ¶ 7.) As a result,
Defendant should also be awarded $706 in costs for Plaintiffs
unjustified failure to attend his deposition on October 25,
Plaintiff failed to attend his October 8 deposition, the
undersigned entered an order compelling Plaintiff to appear
at Defendant counsel's office for a deposition on October
25, 2018 (Dkt. 41). In that same order, the undersigned
granted Defendant's Motion to Compel, thereby requiring
Plaintiff to respond to Defendant's discovery requests
within two (2) days. Plaintiff failed to respond to any of
Defendant's discovery requests despite the Court's
order. (Dkt. 48 at 4-5.) Furthermore, Plaintiff disobeyed the
Court's order by not attending the October 25 deposition.
Due to Plaintiffs non-cooperation and complete abandonment of
this case, the undersigned finds that sanctions are
appropriate under Rule 37(b)(2).
after reviewing counsel's declarations and time entries,
the Court finds that the fees incurred by Defendant pursing
its Motion for Sanctions are reasonable. Therefore, Defendant
should be awarded $2, 314 in attorney's
final note, the Court appreciates that Plaintiff proceeded
prose in this case. See White v. Lever,
5:09-cv-81-RLV-DCK, 2009 WL 4062878, at *1 (W.D. N.C. Nov.
20, 2009) ("Pro se litigants are entitled to some
deference from courts." (citations omitted)). However,
it is well settled that "[p]ro se litigants are not
immune from any sanction by virtue of their status
alone." Matthews v. Rational Wiki Found.. No.
1:14-cv-257, 2017 WL 1129974, at* 2 (E.D. Va. Mar. 24, 2017)
(quoting Zaczek v. Fauauier Ctv.. Va., 764 F.Supp.
1071, 1076 (E.D. Va. 1991)). In a similar case, the Court
awarded sanctions against a prose plaintiff (also
bringing an employment discrimination claim) after Plaintiff
failed to attend a properly noticed deposition and refused to
respond to defendant's written discovery. See White
v. Golden Corral of Hampton. LLC, No. 4:13-cv-27, 2013
WL 12143951, at *l-2 (E.D. Va. Dec. 20, 2013), report and
recommendation adopted in part by 2014 WL 12591153, at
*2 (E.D. Va. Jan. 15, 2014) (adopting magistrate judge's
recommendation, in part, that Defendant be awarded
attorney's fees and costs).
like in White, Plaintiff failed to respond to
discovery and refused to attend a properly scheduled
deposition. Moreover, unlike in White, this Court
did previously warn Plaintiff that severe consequences would
result from his continued refusal to participate in this
litigation, including dismissal (Dkts. 45, 54). Yet,
Plaintiff still declined to communicate with Defendant's
counsel, appear in court, or even respond to the Court's
orders. Therefore, awarding attorney's fees and costs to
Defendant for its Motions to Compel and for Sanctions is
appropriate. Cf Lever, 2009 WL 4062878, at * 1
-2 (declining to award attorney's fees pursuant
to Rule 37(a)(5)(A) against pro se plaintiff only
after plaintiff indicated she had a very serious family
illness and desired to voluntarily dismiss the case).
Defendant shall be awarded $5, 746.50 in attorney's fees,
consisting of $2, 858.50 for its Motions to Compel, $574 for
Plaintiffs failure to attend his October 8 deposition, and
$2, 314 for Defendant's Motions for Sanctions.
Additionally, Defendant shall also be awarded $1, 412 in
costs. An appropriate order shall issue The Clerk is directed
to forward a copy of this Opinion to parties and counsel of