Opinion
No. 2:14-cv-00828-GEB-AC
09-02-2015
SUKHWINDER KAUR, individually and as the successor in interest for the Decedent PARMINDER SINGH SHERGILL; KULBINDER KAUR SOHOTA; SARABJIT SINGH SHERGILL, Plaintiffs, v. CITY OF LODI; CITY OF LODI POLICE DEPARTMENT; MARK HELMS, in his individual capacity as the Chief of Police for the City of Lodi; SCOTT BRATTON, in his individual capacity as a City of Lodi Police Officer; ADAM LOCKIE, in his individual capacity as a City of Lodi Police Officer; Defendants.
ORDER DENYING DEFENDANT'S RECONSIDERATION MOTION AND GRANTING PLAINTIFF ADDITIONAL ATTORNEY'S FEES
Defendant Scott Bratton ("Defendant") seeks reconsideration of the Magistrate Judge's Order filed on May 20, 2015 ("May 20 Order"), under Federal Rule of Civil Procedure ("Rule") 72(a) and Local Rule 303(c). Specifically, Defendant seeks reconsideration of the Magistrate Judge's decision granting Plaintiff Sukhwinder Kaur ("Plaintiff") attorney's fees as the prevailing party on Defendant's motion to quash a subpoena issued to non-party City of Manteca Police Department for Defendant's personnel records. (Mem. P. & A. Supp. Mot. Reconsideration ("Mot.") 1:2-5, ECF No. 79.) Defendant argues in the alternative that "the [attorney's] fee[s] . . . be drastically reduced." (Id. 1:16-17.)
The Magistrate Judge denied Defendant's motion to quash the subpoena in an order filed on March 16, 2015, and in the same denial order required Defendant "to show cause . . . why the court should not order him to pay [P]laintiff's attorney's fees, pursuant to Fed R. Civ. P. 37(a)(5)[(B)], . . . for having to [oppose Defendant's motion to quash the subpoena]." (Order to Show Cause 8:25-28, ECF No. 71.) The Magistrate Judge stated in the May 20th Order granting Plaintiff attorney's fees:
The Magistrate Judge's Order granting Plaintiff attorney's fees states: "The order to show cause mistakenly referred to Fed. R. Civ. P. 37(a)(5)(A), which governs attorney's fees for parties successfully moving to compel discovery. However, the parties appear to have correctly argued the attorney's fees under Fed. R. Civ. P. 37(a)(5)(B), which governs the award of attorney's fees to the party successfully resisting the discovery motion, here, the motion to quash [and for a protective order]." (Order to Show Cause 1:26-28 n.1, ECF No. 71.)
The declarations of [D]efendant's attorneys in opposition to the order to show cause ("OSC") offer no facts or arguments to address the concerns the undersigned expressed in denying the [M]otion . . . . Specifically, the court had already held, in connection with discovery involving the City of Lodi [D]efendants, that past training records and other personnel records could not categorically be ruled to be not relevant, even if the chances of finding relevant documents might diminish with time . . . . Also, [Defendant] sought a blanket protective order for City of Manteca personnel records, even though the court had already rejected [Defendant's] prior request for a blanket protective order for City of Lodi personnel records . . . . In addition, [Defendant] failed to explain why he refused to produce a single document even after [P]laintiff agreed(May 20th Order 2:2-14, ECF No. 76.) Defendant argues in his reconsideration motion that he should not be ordered to pay attorney's fees because his motion to quash was substantially justified for the following reasons:
to accept redacted versions of some of those documents.
[T]he issue raised by [his] motion . . . was distinct from any issue previously decided by this court[;] [further, t]he documents contained within [Defendant's] Manteca Police Department personnel file contained much more private and confidential information than what was contained in his [City of] Lodi file[;] [t]he only redaction that the Plaintiff was willing to accept during meet and confer was redaction of [Defendant's] personal identifying information, his family's contact information and social security numbers . . . . [; and] Plaintiffs' unwillingness to withdraw the request for [certain documents it later conceded need not be produced made] the motion . . . required.(Mot. 1:12-9:15.) Plaintiff rejoins:
[As t]he Magistrate Judge found in the order denying Defendant's motion[,] . . . Defendant's withholding of clearly and, in some cases admittedly, relevant discovery was not supported by any legal authority . . . . Defendant [also] produced no authority supporting his position that he could unilaterally withhold personnel records from discovery . . . . [Further,] . . . any deficiency in the meet and confer process was a product of Defendant's failure to comply with []his obligation under the Rules [requiring Defendant, as the moving party, to meet and confer prior to initiating a discovery motion].(Pl.'s Opp'n to Def.'s Mot. Reconsideration ("Opp'n") 4:23-8:17.)
Defendant filed a reply to Plaintiff's opposition to Defendant's reconsideration motion, which Plaintiff "requests . . . be stricken and disregarded," (Pl.'s Obj. and Req. Strike Def.'s Reply Brief 2:14-16, ECF No. 85), arguing: "[b]oth the Federal Rules of Civil Procedure and the Eastern District of California's Local Rules do not authorize the filing of a reply to an opposition to objections to a [M]agistrate [J]udge's ruling." (Id. 1:22-24) (emphasis in original). However, Plaintiff has not shown that Local Rule 303 negates the portion of Local Rule 230(d) that authorizes a reply brief to be filed. Therefore, this request is denied. --------
Local Rule 303(f) prescribes: "The standard that the assigned Judge shall use in [reconsideration of a Magistrate Judge's ruling under Local Rule 303(c)] is the 'clearly erroneous or contrary to law' standard set forth in 28 U.S.C. § 636(b)(1)(A)." "A [M]agistrate [J]udge's factual findings are 'clearly erroneous' when the district court is left with the definite and firm conviction that a mistake has been committed." Mackey v. Frazier Park Pub. Util. Dist., No. 1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D. Cal. Oct. 25, 2012) (quoting Sec. Farms v. Int'l Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997). "An order 'is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.'" Id. (quoting Knutson v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)).
Defendant has not shown the Magistrate Judge's grant of attorney's fees was clearly erroneous or contrary to law. Therefore, this portion of Defendant's reconsideration motion is denied.
Defendant also argues: "[E]ven if this [C]ourt finds that [Defendant] was not substantially justified in bringing [his motion to quash,] the fee entries submitted by the Plaintiff[']s[] attorneys are not reasonable and should be drastically reduced." (Mot. 1:15-17.) Specifically, Defendant argues Plaintiff's attorneys' "rates are excessive," and "the number of . . . hours [billed by Plaintiff's attorneys are] grossly excessive and unreasonable." (Id. 12:11-13:18.) However, Defendant has not shown that this argument in his motion was presented to the Magistrate Judge. A reconsideration motion should not be used for a party to make a new argument that was not presented to the Magistrate Judge. See In re Galena Biopharma, Inc. Derivative Litig., No. 3:14-CV-382-SI LEAD, 2014 WL 5494890, at *1 (D. Or. Oct. 30, 2014) (stating: "Raising arguments or providing evidence in a motion for reconsideration that could have been included when litigating the original motion are not proper grounds for reconsideration.") (citing Shalit v. Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999)). Therefore, this portion of Defendant's reconsideration motion is denied.
Plaintiff argues she "is entitled to a further award of attorney's fees incurred in the process of responding to Defendant's meritless objections to the Magistrate Judge's Order." (Opp'n 20:2-4.) Specifically, Plaintiff argues:
The Magistrate Judge found that Defendant's [motion to quash was] not substantially justified . . . . Therefore, it follows that Defendant's continued resistance and subsequent involvement of the District Court in the instant motion for reconsideration is similarly unjustified.(Id. 19:27-20:2.)
Plaintiff attaches a declaration from each of her attorneys in support of her fees request. Plaintiff's attorney Mark E. Merin avers he is "the sole proprietor of the Law Office of Mark E. Merin[;]" has "four decades" of "extensive experience in civil rights litigation . . . [;] charge[s] a fee of $450/hour for [his] work[;]" and worked 1.5 hours on the opposition. (Decl. Mark E. Merin Supp. Pl.'s Opp'n Def.'s Mot. Reconsideration ¶¶ 3-5, ECF No. 83-1.) Plaintiff's attorney Paul H. Masuhara avers: he "ha[s] been employed by the Law Office of Mark E. Merin since 2008, initially as a legal assistant and most recently as an associate attorney upon admission to the California State Bar in 2013[;]" "[t]he Law Office of Mark E. Merin bills [his] work at an hourly rate of $250[;]" and he worked 14.75 hours "preparing" the opposition to Defendant's reconsideration motion. (Decl. Paul H. Masuhara Supp. Pl.'s Opp'n Def.'s Mot. Reconsideration ¶¶ 5-6, ECF No. 83-2.)
"Reasonable attorney[']s fees are . . . calculated based on the traditional 'lodestar' method. Under the lodestar method, the [c]ourt determines a reasonable fee by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate." Marrocco v. Hill, 291 F.R.D. 586, 587-88 (D. Nev. 2013) (internal citations omitted). The reasonable hourly rate is "calculated according to the prevailing market rates in the relevant legal community, and the general rule is that the rates of attorneys practicing in the forum district, here the Eastern District of California-Sacramento, are used." Gates v. Deukmeijian, 987 F.2d 1392, 1405 (9th Cir. 1992) (citation omitted). "Within this geographic community, the district court should 'tak[e] into consideration the experience, skill, and reputation of the attorney . . . ." Gonzalez, 729 F.3d at 1205-06 (first alteration in original) (quoting Dang v. Cross, 422 F.3d 800, 813 (9th Cir. 2005)). "The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation . . . ." Johnson v. Multnomah Cnt., 815 F.2d 1258, 1262-63 (9th Cir. 1987) (emphasis added).
Plaintiff provides authority evincing that the hourly rate sought for Merin is reasonable. (See Opp'n 13:9-14:5) (citing cases). However, Plaintiff has not met her "burden of producing satisfactory evidence, in addition to [Masuhara's] affidavit[] . . . , that [his] requested rate[ is] in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Johnson, 815 F.2d at 1262 (emphasis added). Therefore, Plaintiff is only entitled to fees for Merin's work on the opposition to Defendant's reconsideration motion.
Plaintiff has also shown that the amount of time Merin spent preparing the opposition to Defendant's reconsideration motion is reasonable. Specifically, Plaintiff has shown that Merin reasonably billed .5 hours "review[ing] Defendant['s] . . . reconsideration [motion]" and discussing it with co-counsel, and one hour "review[ing], comment[ing on] and revis[ing the] draft [of the] opposition." (Merin. Decl. ¶ 5.) Therefore, Defendant shall pay Plaintiff $675, which reflects 1.5 hours of Merin's work billed at $450/hour, within ten days from the date on which this Order is filed.
I. CONCLUSION
For the stated reasons, Defendant's reconsideration motion and his alternative request for a reduction of the attorney's fees awarded by the Magistrate Judge are DENIED. Plaintiff's request for additional attorney's fees incurred in opposing Defendant's reconsideration motion is GRANTED in part. Further, Defendant shall pay Plaintiff $675 within ten days from the date on which this Order is filed. Dated: September 2, 2015
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge