Smith v. Barrow Neurological Institute et al

Filing 373

ORDER denying plaintiff's 346 Motion to Stay. ORDERED granting defendants' 338 Application for Attorneys' Fees in the amount of $15,154.00 against Keith Knowlton and Keith M. Knowlton LLC, jointly and severally. IT IS FURTHE R ORDERED that defendants are awarded attorneys' fees in the amount of $16,139.50, $11,540.00, and $5,908.50 for a total amount of $33,588.00 against plaintiff, Keith Knowlton, and Keith M. Knowlton LLC, jointly and severally. Signed by Senior Judge Frederick J Martone on 5/28/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leanna Smith,
Plaintiff,

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vs.

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Barrow Neurological Institute, et al.,

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Defendants.

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No. CV 10-01632-PHX-FJM
ORDER

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On February 12, 2013, we entered an order granting defendants Banner Health System

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and Scott Elton, M.D.’s motion for sanctions and instructing them to file an application for

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reasonable attorneys’ fees caused by (1) plaintiff’s failure to promptly obtain records from

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the juvenile court and to comply with Rule 26, Fed. R. Civ. P., and (2) plaintiff’s motion for

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leave to file a third amended complaint (doc. 334). We now have before us defendants’

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application for attorneys’ fees re: order granting sanctions (doc. 338), plaintiff’s motion to

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stay or in the alternative response to defendants’ application (doc. 346), plaintiff’s

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supplement to the motion to stay (doc. 350), defendants’ response to the motion to stay and

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reply in support of the application (doc. 353), and plaintiff’s reply in support of the motion

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to stay (doc. 358).

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Plaintiff’s motion to stay is based on the contention that we do not have jurisdiction

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over the application for attorneys’ fees because on March 3, 2013 plaintiff filed a notice of

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appeal incorporating the order granting sanctions. Generally, the filing of a notice of appeal

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divests the district court of jurisdiction over the matters appealed. Natural Res. Def. Council

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v. Southwest Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). However, the “rule of

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exclusive appellate jurisdiction” resulting from an appeal “is a creature of judicial prudence

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[. . .] and is not absolute.” Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955,

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956 (9th Cir. 1983)(citations omitted). An appeal from the merits does not foreclose an

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award of attorneys' fees by the district court. Id. Allowing the district court to retain the

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power to award attorneys’ fees after the notice of appeal had been filed, “may prevent delay

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and duplication at the appellate level” because, “[i]f a district court decides a fee issue early

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in the course of a pending appeal on the merits, and the fee order is appealed, the appeals

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may be consolidated.” Id.

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Deciding defendants’ application for attorneys’ fees at this time would conserve

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appellate resources because, assuming plaintiff files a notice of appeal from this order, that

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appeal can be consolidated with the pending appeal. Therefore, we deny plaintiff’s motion

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to stay and consider defendants’ application for attorneys’ fees.

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Plaintiff next requests reconsideration of our order granting defendants’ motion for

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sanctions (doc. 334). A court “will ordinarily deny a motion for reconsideration of an Order

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absent a showing of manifest error or a showing of new facts or legal authority that could not

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have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).

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Plaintiff has not met her burden. Plaintiff largely restates facts and arguments that were

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presented when we considered defendants’ motion for sanctions, and fails to explain why she

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could not have raised new arguments earlier with reasonable diligence. Therefore, we deny

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plaintiff’s request for reconsideration. We consider only the reasonableness of the attorneys’

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fees requested pursuant to our order granting sanctions.

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Defendants seek an award of attorneys fees for: (1) $19,571.00 spent in connection

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with plaintiff’s failure to promptly obtain records from the juvenile court and comply with

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Rule 26, Fed. R. Civ. P.; (2) $15,154.00 spent responding to plaintiff’s filing of the third

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amended complaint; (3) $23,080.00 incurred in connection with the motion for sanctions; and

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(4) $5,908.50 expended on this application for attorneys’ fees. Defendants have submitted

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a supporting declaration and an itemization and description of the work performed by their
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counsel. Plaintiff's counsel did not object to the reasonableness of defense counsel's hourly

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billing rate, which ranges between $160.00 per hour to $285.00 per hour. Based on the

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billing information provided and our familiarity with the legal market, we conclude that the

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hourly rates are reasonable.

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Plaintiff objects on several grounds to defendants’ request for attorneys’ fees resulting

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from plaintiff’s failure to promptly obtain records from the juvenile court. First, plaintiff

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argues that defendants are not entitled to $6,894 in fees for work between July 20, 2011 and

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March 29, 2012 because that activity was not caused by plaintiff’s violation of any court

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order. We disagree. The record reflects that Judge Campbell first ordered plaintiff to initiate

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an action in juvenile court to obtain access to records of the juvenile court proceeding on

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April 22, 2011. See Doc. 57. Judge Campbell ordered plaintiff to obtain the juvenile court

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records again on June 30, 2011 and November 2, 2011. See Docs. 70, 85. Therefore, the

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fees defendants incurred in connection with obtaining access to the juvenile records between

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July 2011 and April 2012 are recoverable. Second, plaintiff objects to specific time entries

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reflecting communication between the parties concerning access to juvenile records.

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Plaintiff’s objection is without merit because the time entries specifically reference accessing

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the juvenile court records. Third, plaintiff objects to the redaction of certain time entries.

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Because the redactions preclude us from determining whether the time entries are related to

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gaining access to juvenile records, we reduce the fees requested by the dollar amounts of

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those entries ($96.00+$48.00+$72.00+$72.00+$84+$672 = $1,044).1 Fourth, plaintiff

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contends that defendants inappropriately seek attorneys’ fees for drafting and filing a motion

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to stay in October 2011 because it was denied and not related to violation of any court order.

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Defendants’ motion to stay was related both to the proceedings pending in the Superior Court

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of Arizona in Maricopa County and plaintiff’s failure to obtain an order from the Superior

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See Doc. 338-2 entries dated 10/7/2011, 3/5/2012, 3/22/2012, 3/29/2012, 5/23/2012,
and 5/25/2012.
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Court releasing the juvenile records. Therefore, we reduce by half the fees requested in

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connection with the motion to stay ($2,073/2 = $1,036.50). Next, plaintiff argues that

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defendants’ counsel is not entitled to seek fees for reviewing and accessing the juvenile court

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rulings. This argument is without merit. The specific entries plaintiff objects to are related

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to plaintiff’s failure to obtain the juvenile court records.2 However, defendants are not

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entitled to fees for reviewing juvenile court rulings that plaintiff promptly disclosed ($681).3

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Plaintiff also objects to a series of time entries by generally stating that they are not justified.

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See Doc. 346 at 7. However, our review of the record reveals that they are related to

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accessing the juvenile records. Finally, plaintiff argues that she should not be sanctioned for

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records she allegedly did not possess. But plaintiff, a party to the juvenile proceeding, had

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access to all records. Defendants did not.

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Plaintiff also objects to defendants’ request for attorneys’ fees in connection with

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plaintiff’s failure to comply with Rule 26, Fed. R. Civ. P. Plaintiff challenges a series of

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billing entries referencing communications about expert disclosures between defendants’

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counsel and plaintiff’s counsel, without stating why these are inappropriate. The fees related

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to the entries are recoverable because they are related to plaintiff’s failure to meet the Rule

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26 expert disclosure requirements. Plaintiff also argues that defendants are inappropriately

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seeking attorneys’ fees for preparation of the motion to compel filed on July 24, 2012. Even

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though the motion became moot after we granted defendants’ motion for summary judgment

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on July 31, 2012, the effort that went into the motion resulted from plaintiff’s failure to

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comply with Rule 26. Therefore, the fees associated with preparation of the motion are

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recoverable. However, we agree that the $670 in fees associated with entries in August 2012

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relating to the motion to compel are not recoverable because the summary judgment order

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mooted any further work on the motion to compel. Accordingly, we award defendants fees

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See Doc. 338-2 entries dated 10/3/2011, 10/27/2011, 12/1/2011, 12/16/2011, and
1/25/2012.
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See Doc. 338-2 entries dated 2/2/2012.
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in the amount of $16,139.50 ($19,571.00 less $3,431.50 in inappropriate fees) in connection

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with plaintiff’s failure to promptly obtain records from the juvenile court and to comply with

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Rule 26, Fed. R. Civ. P.

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Next, plaintiff challenges the $15,154.00 in fees defendants request in connection with

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plaintiff’s motion to file a third amended complaint. Plaintiff argues that any fees incurred

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before she filed her third amended complaint on November 11, 2011 are inappropriate. We

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disagree. Plaintiff informed defendants of her intention to file a third amended complaint

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before November 2011. Therefore, the fees defendants incurred before November 2011 in

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preparing to oppose the frivolous filing are reasonable. Plaintiff also objects to several

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entries that have been partially redacted, but it is clear that those entries are related to the

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third amended complaint.4 Finally, plaintiff objects to numerous entries on the bases that the

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fees are unreasonable and excessive. However, she has failed to meet her burden to provide

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evidence demonstrating the excessive or unreasonable nature of the fees. See McGrath v.

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County of Nevada, 67 F.3d 248, 255 (9th Cir. 1995). Accordingly, the fees defendants seek

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in connection with the third amended complaint are reasonable. These fees are recoverable

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against plaintiff’s attorney. See 28 U.S.C. § 1927 (“Any attorney . . . thereof who so

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multiplies the proceedings in any case unreasonably and vexatiously may be required by the

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court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred

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because of such conduct.”).
III

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Finally, plaintiff argues that defendants are not entitled to attorneys’ fees for preparing

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the motion for sanctions and this application for attorneys’ fees. Attorneys’ fees for

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preparing the motion for sanctions are recoverable under our order because the fees related

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to the preparation of the motion for sanctions resulted from plaintiff’s discovery failures and

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frivolous filing. However, we agree with plaintiff that fees in the amount of $23,080.00 are

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See Doc. 338-2 entries dated 11/4/11, 11/11/11, 12/6/11, and 1/20/12.
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excessive. A significant amount of the factual research required for the motion for sanctions

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should have been readily available from other discovery motions. Moreover, the legal issues

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presented were not overly complex. Therefore, we believe an award of half of the fees

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sought, in the amount of $11,540 is appropriate. Defendants are also entitled to recover fees

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for their work in seeking attorneys’ fees. Time spent preparing the fees application “must be

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included in calculating a reasonable fee because uncompensated time spent on petitioning

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for a fee automatically diminishes the value of the fee eventually received.” Anderson v.

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Director, Office of Workers Compensation Programs, 91 F.3d 1322, 1325 (9th Cir. 1996).

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Based on our experience with attorneys’ fees motions, we believe the amount of $5,908.50

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is reasonable.

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IT IS ORDERED DENYING plaintiff’s motion to stay (doc. 346).

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IT IS FURTHER ORDERED GRANTING defendants’ application for attorneys’

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fees (doc. 338). IT IS ORDERED that defendants are awarded attorneys’ fees in the amount

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of $15,154.00 against Keith Knowlton and Keith M. Knowlton LLC, jointly and severally.

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IT IS FURTHER ORDERED that defendants are awarded attorneys’ fees in the amount

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of $16,139.50, $11,540.00, and $5,908.50 for a total amount of $33,588.00 against plaintiff,

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Keith Knowlton, and Keith M. Knowlton LLC, jointly and severally.

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DATED this 28th day of May, 2013.

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