Opinion
No. CV07-165-PHX-FJM (MHB).
June 2, 2008
ORDER
This matter comes before this Court on an Order to Show Cause (Doc. #53) issued on May 2, 2008, and after a review of Defendant's Declaration of Linda Kelly (Doc. #54), Plaintiff's Statement of Attorney's Fees and Costs (Doc. #55), and hearing arguments of counsel at a Show Cause hearing held this date, the Court makes the following findings:
The parties requested a settlement conference during the Scheduling Conference before the Honorable Frederick Martone on November 9, 2007 (Doc. #48). Pursuant to that request and District Judge referral, this Court issued a Settlement Conference Order on March 21, 2008 (Doc. #52), which ordered the parties to appear for a settlement conference on May 2, 2008, at 9:30 a.m. Plaintiff appeared with counsel at the conference, and Defendant's counsel appeared without a representative of Defendant Corporation. Linda Kelly, Director of Corporate Finance and Special Projects had planned to attend, but was over an hour-and-a half late, arriving after the conference had been vacated. She thereafter presented a detailed sworn declaration as to why she was not present, and this Court has no reason to dispute her reasons given.
The Settlement Conference Order also directed the parties to exchange settlement correspondence, to include a demand and reply, before the settlement conference. Plaintiff complied with this direction and Defendant did not. Counsel for Defendant indicated at the Order to Show Cause hearing that this non-compliance was negligence on his part.
Pursuant to Rule 16(f), Fed.R.Civ.P., this Court finds no intentional conduct or bad faith on the part of Defendant; however, Plaintiff incurred considerable costs and fees justifiably relying on the occurrence of the settlement conference on May 2, 2008. Defendant has not demonstrated that its noncompliance was substantially justified, that other circumstances exist which makes an award of expenses unjustified, or that the fees requested are unreasonable. Plaintiff's request for costs associated with having a second representative of Plaintiff corporation attend the conference, and the costs associated with a second night stay in Phoenix, have not been demonstrated to be reasonable. The remaining amount requested for cost reimbursement is not unreasonable.
IT IS THEREFORE ORDERED that Defendant pay to Plaintiff its fees and costs associated with the vacated settlement conference, in the amount of $375.11 for costs, and $3,245.00 for fees, for a total of $3,620.11.