Hernandez v. Brewer et al

Filing 269

ORDER granting 264 Motion for Attorney Fees and awarding $2,323.50 in attorneys' fees to be paid by Plaintiff Cristobal Hernandez to the Pinal County Defendants. IT IS FURTHER ORDERED denying Plaintiffs 258 "Motion for Leav e to Appeal" as moot. IT IS FURTHER ORDERED striking Plaintiff's 267 Sur-reply and 268 Request for Judicial Notice. This case remains closed. See document for complete details. Signed by Senior Judge James A Teilborg on 11/15/18. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cristobal Hernandez, Jr.,
Plaintiff,

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ORDER

v.

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No. CV-11-01945-PHX-JAT

Janice K Brewer, et al.,

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Defendants.

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Pending before the Court is the Pinal County Defendants’ (“Defendants”) Motion

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for Attorneys’ Fees (Doc. 264). Defendants filed the pending Motion for Attorneys’ Fees

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(Doc. 264), in accordance with this Court’s Order (Doc. 257) granting Defendants’

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earlier Motion for Sanctions (Doc. 244). Plaintiff Cristobal Hernandez, Jr. (“Plaintiff”)

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filed a Response to Defendants’ Motion for Attorneys’ Fees (Doc. 265), to which

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Defendants filed a Reply (Doc. 266).

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Plaintiff also filed an improper Sur-reply (Doc. 267) in direct violation of this

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Court’s previous Order (Doc. 257). The Order (Doc. 257) made clear that “Plaintiff may

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respond—once, in accordance with District of Arizona Local Rule Civil 7.2” to

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Defendants’ application for attorneys’ fees. (Doc. 257 at 12). Plaintiff violated the Order

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(Doc. 257) by filing the Sur-reply (Doc. 267) after filing his one, authorized Response

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(Doc. 265).1 Accordingly, the Court strikes Plaintiff’s improper Sur-reply (Doc. 267).

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A sur-reply is not permitted by Federal Rule of Civil Procedure (“Rule”) 7 or
District of Arizona Local Rule (“Local Rule”) 7.2. See LRCiv 7.2(b)–(d). Local Rule 7.2
only allows a party to file one response in opposition of any motion. Id. Moreover, in
granting Defendants’ Motion to Declare Plaintiff a Vexatious Litigant (Doc. 245), the

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The Court previously discussed the factual and procedural background of this case

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at length, and need not repeat it here. (See Doc. 222). The Court now rules on the motion.

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I.

LEGAL STANDARD

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Rule 11 justifies sanctions “when a filing is frivolous, legally unreasonable, or

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without factual foundation, or is brought for an improper purpose.” Estate of Blue v.

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County of L.A., 120 F.3d 982, 985 (9th Cir. 1997). A “frivolous” filing is one that is “both

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baseless and made without a reasonable and competent inquiry.” Townsend v. Holman

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Consulting Corp., 929 F.2d 1359, 1362 (9th Cir. 1990).

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Once a court authorizes sanctions in accordance with Rule 11, the prevailing party

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must submit an application for attorneys’ fees. LRCiv 54.2. The authorizing court must

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examine the content of this application and determine, among other things, whether the

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requested fees are reasonable. Id. Under Rule 11, the sanctions awarded “should never

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exceed those expenses and fees that were reasonably necessary to resist the offending

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action.” In re Yagman, 796 F.2d 1165, 1185 (9th Cir. 1986). In general, reasonable

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attorneys’ fees incurred in litigating an action should be calculated according to the

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“lodestar” method. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This figure is

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determined by multiplying “the number of hours reasonably expended on the litigation

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multiplied by a reasonable hourly rate.” Id. The application for fees should include

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evidence supporting the number of hours worked and the rates requested for the work. Id.

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at 434. In determining the number of hours reasonably expended, the court has discretion

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to exclude hours which are “excessive, redundant, or otherwise unnecessary.” Id.

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II.

MOTION FOR ATTORNEY’S FEES

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This Court authorized sanctions pursuant to Rule 11 after determining that

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Plaintiff was responsible for “frivolous, legally unreasonable filings” and declaring

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Plaintiff a vexatious litigant. (Doc. 257 at 6, 11). The Court now analyzes whether the

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fees requested by Defendants are reasonable, in light of the offending actions.

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Court entered a Pre-Filing Order “prohibiting Plaintiff from filing any further actions or
papers in this case without first obtaining leave to do so[.]” (Doc. 257 at 12).
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A.

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Defendants do not seek fees associated with all of Plaintiff’s frivolous filings, but

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instead only request fees for responding to filings which “clearly warranted a response,”

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in addition to Defendant’s Vexatious Litigant Motion (Doc. 245) and the associated

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Motion for Sanctions (Doc. 244). (Doc. 264 at 4). Counsel for Defendants did not

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respond to a number of Plaintiff’s additional frivolous filings, instead “trust[ing] the

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Court would conclude on its own that the remaining filings were meritless.” (Id.)

Number of Hours

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Defendants seek compensation for a total of 14.1 hours of billed time for associate

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Jennifer B. Anderson, and a total of 0.3 hours of billed time for partner Georgia A.

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Staton. (Id. at 17). As avowed by Defendants, Ms. Staton’s hours were related to

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reviewing this Court’s Order (Doc. 257) granting attorneys’ fees and declaring Plaintiff a

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vexatious litigant. (Id. at 19). Ms. Anderson’s hours were spent reviewing, analyzing, and

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responding to Plaintiff’s filings. (Id. at 17–19). The relevant filings include, among

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others: Doc. 223 (“Request Order to Remove Judge Teilborg, and Move Proceedings to

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Tucson, AZ”); Doc. 224 (“Submission of Evidence Document in 220”); Doc. 225 (“Rule

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60(b)(2)(6) Motion”); Doc. 230 (“Leave to File Reply” and “Reply to 226, 227, 228, and

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229”); Doc. 231 (“Request for Leave to File Declaration: Theft of Personal Property,

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Criminal Misconduct”); and Doc. 231-1 “Declaration: Theft of Personal Property,

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Criminal Misconduct by State Prosecutors”). (Doc. 264 at 14, 17–19). This Court ruled

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that these—and many other—filings by Plaintiff were frivolous and duplicative. (Doc.

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257, n.4–7).

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Plaintiff, in his Response (Doc. 265), does not specifically contest or otherwise

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oppose any of the hours submitted by Defendants. (See generally Doc. 265). Moreover,

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Plaintiff does not argue that any hours submitted in Defendants’ fee application are

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excessive or duplicative. (Id.). Accordingly, the Court finds that the number of hours

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submitted by Defendants is reasonable in light of the numerosity and complexity of

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issues to which Defendants were forced to respond. The Court also observes that

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Defendants efficiently allocated their time by responding only to filings by Plaintiff

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which warranted a response, and did not unreasonably inflate hours in responding to

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unmeritorious claims. The Court finds that the hours submitted by Defendants are in no

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way excessive, redundant, or unnecessary.

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Accordingly, the Court will award fees for 0.3 hours of Ms. Staton’s time, and
14.1 hours of Ms. Anderson’s time.

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B.

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The reasonableness of the hourly rate to be awarded must be determined with

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consideration of the “experience, skill, and reputation of the attorney requesting fees.”

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Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). The Court “should

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be guided by the rate prevailing in the community for similar work performed by

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attorneys of comparable skill, experience, and reputation.” Id. at 1210–11.

Hourly Rate

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Defendants seek an hourly rate of $225.00 for Ms. Staton and an hourly rate of

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$160.00 for Ms. Anderson. Plaintiff makes no objection to the hourly rates sought by

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Defendants, and this Court finds that these rates are reasonable in light of counsel’s

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experience and skill. (See generally Doc. 265). Rather, Plaintiff chooses to use his

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Response (Doc. 265) to re-raise irrelevant issues that are no longer before the Court in

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this closed case. (Id.). The Court need not address these irrelevant issues herein.

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Here, Ms. Staton is a 1974 graduate of the University of Kansas School of Law

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and is an equity partner at Jones, Skelton & Hochuli, P.L.C. (“JSH”) (Doc. 264 at 6). Ms.

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Anderson is a 1994 graduate of the University of Michigan Law School and a senior

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associate attorney at JSH. (Id.) Furthermore, Ms. Anderson’s typical hourly rate is

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between $175.00 and $200.00. (Id. at 5). The Court finds that the hourly rates requested

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by Defendants are reasonably in-line with both the experience of the attorneys and

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prevailing market rates. See, e.g., Angel Jet Servs., LLC v. Giant Eagle, Inc., No. 2: CV-

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09-1489-PHX-SRB, 2013 WL 11311729, at *7 (D. Ariz. Apr. 17, 2013) (findings that

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hourly rates from $120 to $520 were reasonable in Phoenix); Ogden v. CDI Corp., No. 2:

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CV-08-2180-PHX-DGC, 2013 WL 1149913, at *4–5 (D. Ariz. Oct. 11, 2012) (finding

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rates of $300 for a partner and $230 for a senior associate to be reasonable).

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C.

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In considering Defendants Motion for Attorneys’ Fees (Doc. 264), the Court finds

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that the time and labor expended was reasonable, significant knowledge and skill was

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required, the fee charged was customary, and the JSH attorneys have significant

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experience, reputation, and ability. Accordingly, the Court awards reasonable attorneys’

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fees to Defendants by multiplying the reasonable number of hours, as discussed above,

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by the reasonable hourly rate for each attorney. Ms. Staton (0.3 hours x $225.00): $67.50;

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Ms. Anderson (14.1 hours x $160.00): $2,256.00. In total, the Court awards attorneys’

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fees to Defendants in the amount of $2,323.50.

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III.

Calculation

ADDITIONAL FILINGS

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Previously, Plaintiff filed a “Motion for Leave to Appeal” (Doc. 258) and a

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duplicative “Notice of Appeal” (Doc. 259). To the extent Plaintiff’s “Motion for Leave to

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Appeal” (Doc. 258) requests action from this Court, it is denied as moot because the

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Court observes that Plaintiff did indeed file an appeal with the Ninth Circuit. (See Doc.

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2650).

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Additionally, in direct violation of this Court’s Order (Doc. 257) declaring

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Plaintiff a vexatious litigant and entering a pre-filing order against him, Plaintiff filed a

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superfluous Request for Judicial Notice (Doc. 268). Plaintiff failed to seek leave of the

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Court to make such a filing and provides no valid reason for the superfluous filing

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therein. Accordingly, the Court strikes Plaintiff’s Request for Judicial Notice (Doc. 268),

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as the filing violates this Court’s previous Order (Doc. 257). Any future, unpermitted

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filings will similarly be stricken if filed in violation of the Pre-filing Order in place

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against Plaintiff.

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IV.

CONCLUSION

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For the reasons set forth above,

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IT IS ORDERED granting the motion for attorney’s fees (Doc. 264) and

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awarding $2,323.50 in attorneys’ fees to be paid by Plaintiff Cristobal Hernandez to the

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Pinal County Defendants.

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IT IS FURTHER ORDERED denying Plaintiff’s “Motion for Leave to Appeal”
(Doc. 258) as moot.
IT IS FURTHER ORDERED striking Plaintiff’s Sur-reply (Doc. 267) and
Request for Judicial Notice (Doc. 268). This case remains closed.
Dated this 15th day of November, 2018.

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