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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 96-166C Chief Judge Edward J. Damich
MOTION BY THE UNITED STATES FOR RECOVERY OF COSTS AND ATTORNEY'S FEES The United States hereby requests an order of the Court permitting it to offset its costs associated with plaintiff's scheduling and subsequent cancellation of the Deposition of Gordon Sharpe in Knoxville, Tennessee that was scheduled for March 29, 2006 against the costs billed to the government in accordance with the Court's Order, Docket No. 318. The Government brings this motion pursuant to RCFC 30(g)(1) which provides: If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees.
STATEMENT IN SUPPORT OF MOTION Plaintiff, through its attorneys, noticed the deposition of Gordon Sharpe to begin at 9:30 on March 29, 2006 in Cedar Bluff, Tennessee (a suburb of Knoxville, Tennessee). Exhibit 1. Accordingly, Government counsel made arrangements for his attendance and traveled to
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Knoxville on March 28, 2006, departing from his office at 12:00 noon, departing Reagan National Airport at 1:40 p.m., Eastern Time, and arriving in Knoxville at 3:10 p.m., Eastern Time. Exhibit 2. Upon arrival at the airport in Knoxville, Government counsel received a message from Karen Sanderson purporting to be sent on behalf of Dean Monco, and stating that "[t]he deposition of Gordon Sharpe is postponed" because "[f]lights were cancelled out of Chicago due to air traffic control problems." Exhibit 3. Government counsel sought confirmation of the e-mail from Mr. Monco and Ms. Sanderson at 3:16 p.m., Eastern Time. Exhibit 3. Ms. Sanderson confirmed the message at 3:27 p.m., Eastern Time, stating "Dean called me from the airport and asked me to relay this information to you." Exhibit 3. Government counsel was able to return to Washington that same day, arriving at his residence at approximately 6:00 p.m., Eastern Time. As a result of the aborted trip, the Government incurred travel costs of $556.60. The trip also resulted in the loss of 6 hours of attorney time, the reasonable cost of which is $140.91 per hour for a total of $845.46.1 On May 2, 2006, following the rescheduled deposition of Mr. Sharpe, the counsel for the parties met and conferred regarding this matter. Plaintiff's counsel stated that while he was willing to do whatever the law required him to do, he considered the cancellation to be in the
Although the Government believes that it should be entitled to a lodestar rate based on comparative costs for patent attorneys with substantial litigation experience, it limits this fee request to a rate based on the attorney salary and benefits, including overheads. -2-
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nature of an "Act of God" for which he was not responsible.2 Government counsel requested plaintiff's counsel to further consider its position and provide the Government with a response. Plaintiff has not responded further. The Court should award the Government its costs and attorney's fees for two reasons. First, defendant having incurred actual costs by having its counsel travel to Knoxville should not be the one to bear the burden of plaintiff's last minute cancellation. The court's Rules generally favor the reimbursement of the party who does attend. RCFC 30(g); cf. RCFC 37(d)(1) ("If a party ... fails to appear before the officer who is to take the deposition after being served with a proper notice ... the court shall require the party failing to act ... to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust."); Cabot v. United States, 35 Fed. Cl. 80, 81-82 (1996) (time waiting for witness to appear, delays in returning to counsel's home and duplicated preparation time were "caused by the failure" to attend). Second, a review of flight schedules and maps indicates that options other than rescheduling the deposition were available to plaintiff's counsel. There are regularly scheduled flights from Chicago to Knoxville on two major airlines leaving Chicago as late as 7:41 p.m. Exhibit 4. Flights from Chicago to Knoxville are also scheduled in the morning, which would have allowed the deposition to start later but be completed on the scheduled date. And driving to
2
Zoltek counsel attempted to place this instance in the same category as September 11, 2001, when counsel for both parties were precluded by the tragic events of that morning from attending document production and a deposition scheduled for that day in New York City. The cancellation asserted here clearly is not of the same magnitude, and the effect does not fall equally on both parties. -3-
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Knoxville was also an option (MapQuest.com states the driving time as being approximately 9 hours). In short, plaintiff's counsel could have borne the inconvenience while inconveniencing the government and the witness less. Yet, plaintiff's counsel apparently did not explore other options, electing to tell his assistant to notify Government counsel that the deposition was "postponed." The Court has previously granted plaintiff its costs in bringing a motion for sanctions against the United States and ordered the Government to pay plaintiff's costs in conducting a further deposition of Zoltek's former employee Mr. Boyd, who is represented by Zoltek's counsel. See Docket No. 318. According, the United States requests that this Court allow the United States to off-set its costs and attorney's fees in this instance against any monies claimed by plaintiff under the Court's Order, Docket No. 318.
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CONCLUSION Wherefore, the Government requests that the Court allow the Government an offset of $1402.06 against any sanction awarded by the Court pursuant to its Order Docket No. 318. Respectfully Submitted, PETER D. KEISLER Assistant Attorney General JOHN FARGO Director s/Gary L. Hausken GARY L. HAUSKEN Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0342 Facsimile: (202) 307-0345 Attorneys for the United States
June 13, 2006
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 96-166C Chief Judge Edward J. Damich
MOTION BY THE UNITED STATES FOR RECOVERY OF COSTS AND ATTORNEY'S FEES
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 96-166C Chief Judge Edward J. Damich
MOTION BY THE UNITED STATES FOR RECOVERY OF COSTS AND ATTORNEY'S FEES
EXHIBIT 2
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OMEGA WORLD TRAVEL
PHONE: 1-804-747-7769 YOUR TRAVEL IS OUR BUSINESS E-MAIL OMEGA WORLD TRAVEL
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Sabre Reservation Code: CPBHNQ Ticket number: 0371358329004 Issuing airline: US AIRWAYS Date issued: 21MAR06 Customer number: Passenger: HAUSKEN/GARY
Issuing agent: Issuing agent: IATA number: Invoice number:
28MAR06 US AIRWAYS US 2553 From: WASHINGTON REAGAN, DC To: KNOXVILLE, TN Operated by: US AIRWAYS EXPRESS-PSA AIRLINES Confirmation: BHKXOD 30MAR06 US AIRWAYS US 3740 From: KNOXVILLE, TN To: WASHINGTON REAGAN, DC Operated by: US AIRWAYS EXPRESS-AIR WISCONSIN Confirmation: BHKXOD
Departs:140P Economy Confirmed Arrives: 314P Fare basis: MCADCA
Departs:1035A Economy Confirmed Arrives:1200N Fare basis: MCADCA
Form of payment: Credit Card Endorsement / restrictions: NONE Fare calculation line: WAS US TYS240.93MCADCA US WAS240.93MCADCA 481.86 END ZPDCATYS XT5.00AY9.00XFDCA4.5TYS4.5 Fare: Taxes/fees/charges Taxes/fees/charges: Taxes/fees/charges: Taxes/fees/charges: Total: USD 481.86 USD 36.14 US US Transportation Tax USD 6.60 ZP US Segment Tax USD 14.00 XT Combined Taxes USD 538.60
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 96-166C Chief Judge Edward J. Damich
MOTION BY THE UNITED STATES FOR RECOVERY OF COSTS AND ATTORNEY'S FEES
EXHIBIT 3
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From: [email protected] Sent: Tuesday, March 28, 2006 3:27 PM To: Hausken, Gary (CIV) Subject: RE: Zoltek vs. U.S. (Case No. 96-166C) Mr. Hausken: Yes, that is correct. The deposition has been postponed. Dean called me from the airport and asked me to relay this information to you. If we can be of any further help in this matter, please let us know. Karen Sanderson
-----Original Message----From: [email protected] [mailto:[email protected]] Sent: Tuesday, March 28, 2006 2:16 PM To: Karen Sanderson; Dean A. Monco Subject: Re: Zoltek vs. U.S. (Case No. 96-166C) Please confirm that the deposition will not be held tomorrow. Tennessee. Gary L. Hausken Assistant Director Intellectual Property Staff Commercial Litigation Branch Civil Division U.S. Department of Justice Washington, DC 20530 Telephone: 202-307-0342 Facsimile: 202-307-0345 I am already in
--------------------------------------------------------------------Sent from my BlackBerry Wireless Handheld -------------------------------------------------------------------------Original Message----From: [email protected]
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 96-166C Chief Judge Edward J. Damich
MOTION BY THE UNITED STATES FOR RECOVERY OF COSTS AND ATTORNEY'S FEES
EXHIBIT 4
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ZOLTEK CORPORATION, a Missouri corporation, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 96-166C Chief Judge Edward J. Damich
MOTION BY THE UNITED STATES FOR RECOVERY OF COSTS AND ATTORNEY'S FEES
EXHIBIT 5
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Driving Directions from Chicago, IL to Knoxville, TN
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Start: Chicago, IL US End:
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Knoxville, TN US
Directions Total Est. Time: 8 hours, 48 minutes Total Est. Distance: 545.02 miles
Distance
1: Start out going NORTH on N LA SALLE ST toward W COURT PL. 2: Turn LEFT onto W RANDOLPH ST. 3: Merge onto I-90 E / I-94 E via the ramp on the LEFT. 4: Take DAN RYAN EXP E / I-90 EXP E / I-94 EXP E toward 51ST ST. 5: Merge onto I-90 E toward EXIT 59A / INDIANA TOLL RD (Portions toll) (Crossing into INDIANA). 6: Take the I-65 / US-12 / DUNES HWY / US-20 exit- EXIT 17- toward INDIANAPOLIIS. 7: Merge onto I-65 S toward INDIANAPOLIS. 8: Merge onto I-465 E / I-74 E / IN-37 N via EXIT 106. 9: Take the I-74 E exit- EXIT 49A-B- toward CINCINNATI / SOUTHEASTERN AVE. 10: Merge onto I-74 E via EXIT 49B toward CINCINNATI (Crossing into OHIO). 11: Merge onto I-275 S via EXIT 5 toward KENTUCKY (Passing through INDIANA- then crossing into KENTUCKY). 12: Merge onto I-75 S via EXIT 84 toward LEXINGTON / LOUISVILLE (Crossing into TENNESSEE). 13: Take I-275 S toward ASHEVILLE. 14: Take the I-40 E / US-441 S exit toward ASHEVILLE. 15: Merge onto HENLEY ST / US-441 S / TN-33 S / TN-71 S toward HENLEY ST. 16: End at Knoxville, TN US Total Est. Time: 8 hours, 48 minutes Total Est. Distance: 545.02 miles
<0.1 miles 0.6 miles 3.0 miles 4.0 miles 24.9 miles 0.7 miles 156.0 miles 4.4 miles 0.1 miles 83.5 miles 23.8 miles 239.3 miles 2.9 miles 0.2 miles 0.8 miles
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Driving Directions from Chicago, IL to Knoxville, TN
http://www.mapquest.com/directions/main.adp?do=prt&mo=ma&2si=g...
Case 1:96-cv-00166-EJD
Document 320
Filed 06/13/2006
Page 30 of 30
Start: Chicago, IL US
End: Knoxville, TN US
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These directions are informational only. No representation is made or warranty given as to their content, road conditions or route usability or expeditiousness. User assumes all risk of use. MapQuest and its suppliers assume no responsibility for any loss or delay resulting from such use.
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