Free Motion to Compel - District Court of Colorado - Colorado

Case 1:03-cv-02355-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2355-RPM LEONID DMITRUK, Administrator of the Estate of Alexander Bugaychuk, deceased, and YELENA BUGAYCHUK, an individual, and NATALIA MELNIK an individual, and IRINA MOROZOV, personally and as administrator of the Estate of Yevgeniy Morozov, deceased, and as Guardian for SARA MOROZOV, a minor, and ELEANNA MOROZOV, a minor, Plaintiffs, v. GEORGE AND SONS' REPAIR SHOP, INC, a Colorado corporation, d.b.a. "George's Towing", GEORGE ROSLER, a resident of the State of Colorado. Defendants. ______________________________________________________________________________ DEFENDANTS' MOTION TO COMPEL OR IN THE ALTERNATIVE TO SET AMOUNT OF ATTORNEYS' FEES AND COSTS ______________________________________________________________________________ COME NOW the Defendants George and Sons' Repair Shop, Inc., d.b.a. George's Towing, and George Rosler, by and through their attorney, Andrew J. Carafelli, of Hall & Evans, L.L.C. and file their Motion to Compel or in the Alternative to Set Amount of Attorneys' Fees and Costs as follows: 1. That the Plaintiffs herein, all of whom are Washington State residents, filed their

Amended Complaint in this matter in the United States District Court for the District of Colorado on the 26th day of November, 2003.

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2.

That during the course of discovery in this matter, the undersigned requested that the

Plaintiffs' attorney produce his clients in the State of Colorado for their depositions. However, Plaintiffs' attorney refused to produce his clients in the State of Colorado despite the fact that they have brought suit here in the State of Colorado regarding an accident which occurred in the State of Colorado. 3. That on April 21, 2005, Defendants filed their Motion for Reconsideration on

Defendants' Motion to Compel which raised, among other issues, Plaintiffs' attorney's refusal to produce his clients in the State of Colorado. 4. On June 3, 2005 a hearing was held on said Motion and the issue of the location of

Plaintiffs' depositions was heard. The court indicated that given the fact that the Plaintiffs had filed suit in the State of Colorado, they should come here for their depositions. However, the court also offered to Plaintiffs' attorney the alternative that Plaintiffs pay the undersigned's way to Washington State to conduct said depositions. Mr. Allahyari, Plaintiffs' counsel, agreed to the latter. 5. That on June 28, 2005, the undersigned traveled to the State of Washington to

conduct the depositions of the four Plaintiffs in this matter on June 29, 2005. As a result of the scheduling of the depositions, it was necessary for the undersigned to leave the preceding day prior to the depositions, stay one night in a hotel and incur expenses and costs for a rental car and meals. That the undersigned billed the insurance carrier his hourly rate for his travel time and for the expenses incurred. 6. On July 25, 2005, the undersigned sent a letter to Plaintiffs' counsel, Komron

Allahyari, asking for payment of the following expenses in conjunction with the undersigned's

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travel to Seattle, Washington to conduct depositions of the Plaintiffs. See Exhibit A attached hereto. Air Fare $ 446.40 Mileage $ 25.11 (62 miles @ $.4050 per mile to and from DIA Airport) Rental Car $ 206.01 Parking $ 42.00 (U.S. Bank Building Parking) $ 36.00 (Parking at DIA) Hotel $ 266.99 Meals $ 28.03 $1,050.54 Fees $ 700.00 (6/29/05 Travel from Denver to Seattle for depositions of Plaintiffs) (5.0 hours @ $140.00/hour) $ 840.00 (6/30/05 Travel from Seattle to Denver) (6.0 hours @ $140.00/hour) $1,540.00 $2,590.54

TOTAL EXPENSES:

TOTAL FEES: GRAND TOTAL: 7.

After repeated demands for payment of the aforesaid costs, fees, and expenses, on

September 23, 2005 the undersigned received a letter from Plaintiffs' attorney refusing to pay the undersigned's costs, fees, and expenses. Plaintiffs' attorney now refuses to pay the undersigned's fees incurred in traveling to Washington to conduct the depositions of the Plaintiffs. Furthermore, Plaintiffs' attorney objects to paying the hotel and rental car bill in full and also refuses to pay for any meals. Instead, Plaintiffs' attorney proposed the payment of the following expenses:

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Air Fare $ 446.40 Mileage $ 25.11 (62 miles @ $.4050 per mile to and from DIA Airport) Rental Car $ 80.00 Parking $ 78.00 Hotel $ 100.00 TOTAL: $ 729.51 8. Had Plaintiffs been required to come to Colorado for the depositions as the court

indicated, Plaintiffs would have incurred at a minimum the following expenses: Air Fare ­ Four Plaintiffs and Mr. Allahyari @ $446.40 $2,232.00 The Plaintiffs would also have incurred the cost of at least three hotel rooms, one for Mr. Allahyari and two for the four Plaintiffs. This would have been approximately $300.00. The Plaintiffs would also have had to rent a car and/or take taxis to and from the airport. Again, this would be approximately $100.00. The Plaintiffs and Mr. Allahyari also would have had to expend monies for meals during the trip. Even being conservative, for five people this certainly would have been at least $100.00. Thus, Plaintiffs would have expended a total of $2,732.00. 9. Now Mr. Allahyari refuses to pay the undersigned's attorneys' fees for traveling to

and from Washington. However, this is the very reason why the undersigned wanted the Plaintiffs to travel to Colorado for their depositions; so that he would not have to charge the insurance carrier for his fees in traveling to Washington. This is clearly a reasonable expense that was incurred because of Plaintiffs' refusal to come to Colorado.

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10.

With respect to the hotel bill which Mr. Allahyari claims is excessive, the

undersigned paralegal simply called the court reporter and asked for a hotel near the facility where the depositions were being conducted and was told that the Crowne Plaza was approximately a block away. In his letter (See Exhibit B), Mr. Allahyari argues that when he came to Denver for the Motion to Compel hearing he stayed at a Comfort Inn with a total charge of $85.25. It would appear that Mr. Allahyari's argument is that the undersigned should have chosen the least expensive hotel room he could find in Seattle in order to accommodate his clients' desire not to come to Colorado. It should be noted that the $266.99 bill for the hotel included parking for the rental car and a breakfast. The bill approximates what it would have costs the Plaintiffs to stay in a hotel had they had to come to Denver for their depositions. Defendants contend this bill is reasonable and the Plaintiffs should have to pay the same. 11. With respect to the rental car bill, because the undersigned had to travel to Seattle

the day preceding the depositions since they began the following morning at 8:00 a.m., and concluded at approximately 4:00 p.m., there was a two-day charge for the rental car. Unfortunately the undersigned did not realize it would have been less expensive to take a taxi from the Seattle/Tacoma airport to downtown Seattle. Indeed, the undersigned believed that a rental car would have been less expensive. As such, Defendants are willing to waive $100.00 of the rental car bill. 12. Finally, the cost of the meals incurred by the undersigned totaled $28.03. Given the

fact that the travel to and from the depositions in Washington State was approximately two days, this cost is entirely reasonable. Moreover, it is a cost that the undersigned would not have incurred but for his travel to Washington State.

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WHEREFORE, Defendants would respectfully request that this court enter an Order compelling the Plaintiffs to pay the costs, fees, and expenses incurred by the undersigned for traveling to Seattle, Washington to conduct the depositions of the Plaintiffs in the amount of $2,490.54 or, in the alternative to set the fees, costs, and expenses of the undersigned for conducting the depositions of the Plaintiffs in Washington State. Dated this 30th day of November 2005. Respectfully submitted, /s Andrew J. Carafelli Andrew J. Carafelli HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 30th day of November 2005, (MUST PUT IN DATE HARD) I electronically filed the foregoing DEFENDANTS' MOTION TO COMPEL OR IN THE ALTERNATIVE TO SET AMOUNT OF ATTORNEYS' FEES AND COSTS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Komron M. Allahyari, Esq. Washington Law Group 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 E-mail: [email protected]

s/Leslie E Grauberger, Secretary Andrew J. Carafelli, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 303-293-3231 ­ Fax [email protected] ATTORNEYS FOR DEFENDANTS

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