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English v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

November 9, 2017

CHIMWALA F. ENGLISH, Plaintiff,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Defendant Washington Metropolitan Area Transit Authority's (“Defendant” or “WMATA”) Motion to Compel Payment of Expert Fees for Preparation for Discovery Deposition [ECF No. 27], which seeks to compel Chimwala F. English (“Plaintiff” or “Ms. English”) to pay fees for an expert witness's deposition preparation time. Ms. English opposes the motion. The District Judge presiding over this case has referred all discovery disputes to the undersigned Magistrate Judge pursuant to Local Civil Rule 72.2(a). See Order, ECF No. 21. Having reviewed the parties' submissions, the Court will deny without prejudice WMATA's Motion to Compel Payment of Expert Fees for Preparation for Discovery Deposition (“Motion to Compel Fees”) [ECF No. 27] for the reasons set forth below.

         BACKGROUND

         This case is a wrongful death and survival action arising from a September 3, 2015 accident in which Reginald Burrell was dragged under the rear portion of a WMATA bus and injured. See Compl. ¶¶ 7-13, ECF No. 1. Mr. Burrell was hospitalized after the accident and died five days later. Id. ¶ 17. Ms. English alleges that the WMATA employee who operated the bus that injured Mr. Burrell acted negligently, and that the driver's negligence was the direct, sole, and proximate cause of Mr. Burrell's injuries and subsequent death. Id. ¶¶ 21, 51, 58, 87. WMATA admits that at all relevant times the bus driver was acting within the scope of his employment as a WMATA bus operator, but denies that it or the driver was negligent. Answer at 2-3, ECF No. 5.

         Ms. English deposed WMATA's medical expert, Dr. Romergryko G. Geocadin, on June 9, 2017. See Def.'s Mot. to Compel Payment of Expert Fees for Preparation for Discovery Dep. (“Def.'s Mot. to Compel”) ¶¶ 2-4, ECF No. 27. Dr. Geocadin testified regarding the conscious pain and suffering that Mr. Burrell experienced prior to his arrival at Washington Hospital Center. See Pl.'s Opp'n to Def.'s Mot. to Compel, Ex. 4 at 22:4-21 (“Pl.'s Opp'n”), ECF No. 29-4. Ms. English paid Dr. Geocadin for the deposition. See Pl.'s Opp'n at 10, ECF No. 29; see also Def.'s Mot. to Compel ¶ 4, ECF No. 27. On June 14, WMATA sent Ms. English an invoice seeking $5, 950 for the time Dr. Geocadin spent preparing for the deposition. Def.'s Mot. to Compel ¶¶ 5-6, ECF No. 27; Def.'s Mot. To Compel, Ex. 2, ECF No. 27-3. Ms. English has not yet paid this invoice. See Def.'s Mot. To Compel ¶ 6, ECF No. 27.

         WMATA now seeks a Court order compelling Ms. English to pay for the time that Dr. Geocadin spent preparing for the deposition. See Id. at 1. Ms. English opposes the motion on two grounds, arguing: first, that WMATA failed to meaningfully confer as required under Local Civil Rule 7(m); and second, that WMATA has not proven that the time Mr. Geocadin spent on deposition preparation, or the hourly fee he charged, is reasonable. See generally Pl.'s Opp'n. WMATA filed no reply.

         LEGAL STANDARDS

         I. Motion to Compel Expert Fees for Deposition Preparation

         Federal Rule of Civil Procedure 26(b)(4)(E) provides that “[u]nless manifest injustice would result, the court must require that the party seeking discovery . . . pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D).” Time spent “responding to discovery” includes the time an expert uses to prepare for a deposition. See Barnes v. Dist. of Columbia, 272 F.R.D. 135');">272 F.R.D. 135, 137 (D.D.C. 2011); Schmidt v. Solis, 272 F.R.D. 1, 1-3 (D.D.C. 2010). The party seeking reimbursement bears the burden of establishing that the fee is reasonable. Barnes v. Dist. of Columbia, 274 F.R.D. 314, 316 (D.D.C. 2011) (citing Guantanamera Cigar Co. v. Corporaction Habanos, S.A., 729 F.Supp.2d 246, 255-56 (D.D.C. 2010). “[T]he party who noticed the deposition, must compensate the expert accordingly.” Barnes, 272 F.R.D. at 137.

         II. Local Civil Rule 7(m)

         This Court's Local Rules require that “[b]efore filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is, to narrow the areas of disagreement.” Local Civ. R. 7(m). This rule was adopted “to promote the resolution of as many litigation disputes as possible without court intervention, or at least to force the parties to narrow the issues that must be brought to the court.” Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 102 (D.D.C. 2006) (citing United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., Inc., 235 F.R.D. 521, 529 (D.D.C. 2006)); see also Dist. Hosp. Partners, L.P. v. Sebelius, 971 F.Supp.2d 15, 21 (D.D.C. 2013); Fed.R.Civ.P. 37(a)(1) (requiring that a motion to compel discovery “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make . . . discovery in an effort to obtain it without court action”). Parties' “obligation to confer may not be satisfied by perfunctory action, but requires a good faith effort to resolve the non-dispositive disputes that occur in the course of litigation.” Pogue, 235 F.R.D. at 529.

         DISCUSSION

         Ms. English urges the Court not to reach the merits of the Motion to Compel Fees, arguing that the motion should be denied because WMATA's counsel failed to confer to the degree required by Rule 7(m). See Pl.'s Opp'n at 1-6, ECF No. 29. Local Civil Rule 7(m) requires parties to make a “good-faith effort to determine whether there is any opposition to the relief sought and, if there is, to narrow the areas of disagreement.” Local Civ. R. 7(m). A “good-faith” effort means that parties must take “real steps to confer.” Ellipso, Inc., 460 F.Supp.2d at 102 (quoting United States ex rel. K & R Ltd P'ship v. Mass. Hous. Fin. Agency, 456 F.Supp.2d 46, 52 (D.D.C. 2006)) (internal quotation marks omitted). Courts in this District have previously denied non-dispositive motions for failure to comply with Local Civil Rule 7(m). See, e.g., Ellipso, Inc., 460 F.Supp.2d at 102 (denying parties' discovery motions “because the parties have not complied with Local Civil Rule 7(m).”); Pogue, 235 F.R.D. at 529 (denying defendants' motion to compel for failure “to confer with opposing counsel in an attempt to resolve the dispute before filing a non-dispositive motion” under both the Federal Rules and Local Civil Rule 7(m)); see also Equal Rights Ctr. v. Post Properties, Inc., 246 F.R.D. 29, 31 (D.D.C. 2007) (noting that “[f]ailure to comply with the duty to confer requirement . . . is grounds for dismissing a motion to compel.”) (citing cases); Walker v. Dist. of Columbia, 317 F.R.D. 600, 605 (D.D.C. 2016) (noting “similar cases where movants have overlooked their duties under . . . the Local Rules” and “judges in this Circuit have . . . denied the motion to compel.”).

         Here, it does not appear that WMATA has meaningfully conferred with Ms. English regarding the expert fee dispute. Exhibit 3 to the Motion to Compel Fees contains three emails reflecting counsel's communications regarding this issue. See Def.'s Mot. to Compel, Ex. 3, ECF No. 27-4. The first email, sent by WMATA's counsel on June 14, 2017 at 4:30 p.m., advises Ms. English of Dr. Geocadin's supplemental invoice and seeks payment. See Id. The second email, sent by Plaintiff's counsel on June 14, 2017 at 5:37 p.m. responds in the negative to the request. See Id. The third email, sent by WMATA's counsel on June 19, 2017 at 2:55 p.m., asserts that the email constitutes “an effort to avoid going to the Court with a motion to compel your payment of Dr. Geocadin's preparation for deposition fees” ...


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