Opinion
Cause No. 1:04CV95.
February 18, 2005
ORDER
This case, brought by Dr. Ahmed Mattar under Title VII of the Civil Rights Act of 1964, is before the Court on a number of pending discovery matters. At present, Dr. Mattar is representing himself, his attorney having withdrawn. The Defendant, Community Memorial Hospital, Dr. Mattar's former employer, is represented by counsel.
The Hospital is asking this Court to compel Dr. Mattar to give a deposition in Fort Wayne, Indiana, the location of his former employment, and where he brought this suit. ( See DE # 29.) The Hospital also is asking for $1,134 in attorney fees associated with obtaining an order compelling Dr. Mattar to answer some prior discovery. ( See DE # 28.) The Hospital also wants Dr. Mattar held in contempt because he still has not answered some interrogatories or fully produced documents as previously ordered. ( See DE # 30.)
Dr. Mattar opposes these motions. As for his deposition, Dr. Mattar suggests that the Defendant should conduct it by telephone while he remains in Wichita Falls, his current place of employment, or alternatively, that counsel for the Defendant should come there to depose him. Nevertheless, Dr. Mattar says that if he does have to come to Fort Wayne, he should have two months notice and his travel expenses paid by the Defendant. As for the motion to compel, Dr. Mattar indicates that he has been cooperative, suggests that his answers were complete, and that he should not be held responsible for any attorney fees.
Finally, Dr. Mattar asks that discovery be extended for a period of two months, so he can prepare his case and possibly secure counsel. ( See DE # 34, 42.) The Hospital opposes the extension of discovery since Dr. Mattar has failed to explain why he did not do any while discovery was open; in other words, they contend he has not shown "good cause."
The motion to compel Dr. Mattar to submit to a deposition in Fort Wayne, and his apparent request for a protective order, are easily dispatched. The general rule is that a plaintiff may be required to attend a deposition in the district where the case was filed. Gibbs v. Nat'l R.R. Passenger Corp., 170 F.R.D. 452 (N.D. Ind. 1997). This general maxim is based on the theory that once a plaintiff has chosen a forum voluntarily, the plaintiff should expect to appear in such forum for any legal proceedings. Id. (citing Newman v. Metro. Pier Exposition Auth., 962 F.2d 589, 591-92 (7th Cir. 1992); Undraitis v. Luka, 142 F.R.D. 675, 676 (N.D. Ind. 1992)).
Dr. Mattar does little to disturb operation of this general rule. He conclusorily asserts "great difficulty and hardship" in having to return to Fort Wayne, apparently stemming from the demands of the family practice residency program in which he currently serves. This showing falls far short of establishing either "good cause" or "extreme hardship," United States v. Rock Springs Vista Development, 185 F.R.D. 603, 604 (D. Nev. 1999), which are the benchmarks for deviating from the usual practice. As one would expect when the Plaintiff is a fully employed doctor, the expense of returning does not seem to be an impediment, and that alone is not enough in any event. Newman, 962 F.2d at 591-92. Indeed, putting all factors on the scale, the inconvenience to Dr. Mattar does not outweigh the inconvenience to the Defendant; said somewhat differently, what Dr. Mattar is asking is that the Court shift the expense and inconvenience from him to the Defendant. That argument gains no traction when it was Dr. Mattar who initiated the suit here and then elected to move away. Accordingly, Dr. Mattar should submit to a face-to-face deposition in Fort Wayne, at his expense, unless his suggestion for a telephone deposition is deemed a suitable alternative.
Telephone depositions are certainly authorized under the Federal Rules of Civil Procedure, see Fed.R.Civ.P. 30(b)(7), but Rule 30(b)(7) generally has a pinched application when the person to be deposed is a party. See Rock Springs Vista Dev., 185 F.R.D. at 604. This is particularly true here where Dr. Mattar is presumably seeking a great deal of money, and where the examination of documents, likely many documents, makes a telephone deposition infeasible. Moreover, counsel for the Defendant is entitled to see Dr. Mattar face-to-face, to observe his demeanor in response to questioning, and that cannot be done through a telephone deposition. Id. Accordingly, the motion to compel Dr. Mattar's deposition will be granted, and his request for a protective order is overruled.
This brings us to the next matter in controversy, the request for fees filed by the Hospital concerning the September 29, 2004, granting of a motion to compel. In that order, the Court instructed counsel for the Hospital to file an affidavit, and they promptly did so. ( See DE # 28.) Dr. Mattar's response indicates that he disputes the amount of fees sought by the Hospital given that, in his view, the motion could have been drafted by a "novice paralegal." ( See DE # 40 ¶ 3.) Apparently, Dr. Mattar also maintains that he has fully answered Interrogatory Nos. 4 and 14, and Request for Production of Documents Nos. 5 and 6. ( See Dr. Mattar Affidavit dated 10/16/2004 (attached as Exh. B. to the Hospital's Notice of Noncompliance)). The Court assumes that this position is in support of an argument that no fees should be assessed because the earlier failure to answer was "substantially justified." See Fed.R.Civ.P. 37(a)(4).
Rule 37(a)(4) governs the imposition of expenses and sanctions related to a motion to compel. It provides, in pertinent part:
(A) If the motion is granted . . . the court shall, after affording an opportunity to be heard, require the party . . . whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds . . . that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(4). This Rule "presumptively requires every loser to make good the victor's costs." Rickels v. City of South Bend, 33 F.3d 785, 786 (7th Cir. 1994). Such fee-shifting "encourages . . . voluntary resolution" of discovery disputes and "curtails the ability of litigants to use legal processes to heap detriments on adversaries (or third parties) without regard to the merits of the claims." Id. at 787. Accordingly, "the loser pays" unless he establishes "that his position was substantially justified." Id. at 786-87.
As to Dr. Mattar's first argument, the Court now turns to the merits of the Hospital's motion for fees. Courts use the well-known "lodestar" method to determine a reasonable amount of fees. E.g., People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996); Hensley v. Eckerhart, 461 U.S. 424, 433-37 (1983). Under this method, the court first determines the "lodestar" by multiplying the hours reasonably expended on the case by a reasonable hourly rate. People Who Care, 90 F.3d at 1310. The court may then adjust this award based on various factors, see id. at 1310 n. 1, the "most critical" of which is the degree of success obtained by the movant, Hensley, 461 U.S. at 436. The movant bears the initial burden of documenting its fees to the satisfaction of the court; once it has done so, those fees are presumptively appropriate unless challenged by the opposing party. Tomazzoli v. Sheedy, 804 F.2d 93, 96 (7th Cir. 1986).
Here, the record reflects that the rate of both attorneys representing the Hospital are what they customarily charge for services. ( See Moreland Aff. (DE# 28) ¶¶ 4-5.) The burden shifts to Dr. Mattar to show why these rates should be lowered. Stark v. PPM America, Inc., 354 F.3d 666, 674-75. He has failed to do so.
Dr. Mattar does challenge the number of hours spent on the motion to compel by arguing that counsel used poor billing judgment by not turning the work over to a paralegal. The number of hours spent on the work, however, reveal a rather efficient use of counsel's time, and besides, an associate at a much lower billing rate did more than half of the work. ( See Moreland Aff. ¶ 9.) Finally, the nature of the work is not something the Court would expect an attorney would turn over to a paralegal, novice or otherwise.
Therefore, the lodestar calculation would mean that Dr. Mattar should pay attorney fees in the amount of $1,134 for the motion to compel granted by the Court on September 29, 2004, unless he can show that his failure was "substantially justified." See Fed.R.Civ.P. 37(a)(4). In that regard, Dr. Mattar apparently contends, notwithstanding the Court's earlier Order, that his answers were complete and he has nothing more to disclose. ( See Dr. Mattar's so-called "Affidavit" of "10/16/2004.") This contention is patently inaccurate, as a cursory examination of his insufficient answers to Interrogatory Nos. 4 and 14 and Request for Production of Documents Nos. 5 and 6 reveal. Moreover, Dr. Mattar never objected to the discovery or sought a protective order. Consequently, since Dr. Mattar has failed to make any showing of substantial justification, Rule 37(a)(4) makes him responsible for the attorney fees incurred in obtaining the order to compel.
Dr. Mattar should consult 28 U.S.C. § 1746 for the proper form of an unsworn declaration.
This brings us to the Hospital's Motion for Rule to Show Cause. In that motion, the Hospital observes that Dr. Mattar still has not answered the discovery, or more importantly for the present motion, has failed to comply with the Court's September 29, 2004, Order. The Hospital seeks a finding of contempt for Dr. Mattar's alleged willful failure.
However, since Dr. Mattar had some communication problems with his former counsel, and now is representing himself, he may not have fully appreciated his discovery responsibilities before the entry of this Order. Accordingly, the Court will deny the motion for a rule to show cause without prejudice to later reassertion in the event Dr. Mattar continues to disregard the September 29, 2004, Order, or this one. In that regard, the Court will give Dr. Mattar a further opportunity to become fully compliant with the September 29, 2004, Order, and this one, before requiring his personal attendance at a contempt hearing.
The same analysis supports Dr. Mattar's motion to extend discovery. Whatever the cause, it is apparent that Dr. Mattar and his counsel had some mis-communications, leading to a loss of discovery opportunities. Unless the Court extends discovery for some period of time (Dr. Mattar suggests two months, see DE # 42) the Plaintiff will have no discovery with which to challenge any motion for summary judgment. Moreover, Dr. Mattar maintains that because discovery is over, he has been unable to secure counsel to represent him. Id. Accordingly, the Court will grant the motion and extend discovery, but only after a two month stay is entered, designed to do three things: (1) give Dr. Mattar and counsel for the Hospital time to arrange a mutually convenient date for Dr. Mattar's deposition; (2) afford Dr. Mattar an opportunity to secure counsel in time to participate at the deposition and all further discovery; and (3) allow Dr. Mattar to become fully compliant with this Order and the Court's September 29, 2004, Order.
IT IS THEREFORE ORDERED, that on the Court's own motion, all further discovery is stayed, and will not be initiated until April 19, 2005. On April 19, 2005, discovery will open without further order of the Court and will extend to July 19, 2005, as the last date for the completion of all discovery. Dr. Mattar's motion for an extension of discovery (DE # 34) is therefore granted.
IT IS FURTHER ORDERED, that Dr. Mattar will submit to a deposition in Fort Wayne, Indiana, at a mutually agreeable date and time; provided, however, that the deposition will commence no earlier than April 19, 2005, and no later than May 3, 2005. The Hospital's motion (DE # 29) is therefore granted.
IT IS FURTHER ORDERED, that Dr. Mattar shall bring himself within full compliance with the Court's September 29, 2005, Order by March 19, 2005. The motion for a rule to show cause (DE # 30) is denied without prejudice.
IT IS FURTHER ORDERED, that Dr. Mattar shall pay attorney fees to counsel for the Hospital in the amount of $1,134 on or before March 19, 2005.