Jerry Beeman and Pharmacy Services Inc et al v. Anthem Prescription Management Inc et al

Filing 449

MINUTES (IN CHAMBERS) ORDER Awarding Defendants' Reasonable Attorney's Fees and Costs Re: Defendants Motion to Compel [Dkt. 434] by Magistrate Judge Kenly Kiya Kato, Plaintiffs' Counsel shall pay as reasonable attorney's fees and costs the sum of $15,750.00 to defendant Argus Health Systems, Inc. and the sum of $2,881.00 to defendant Prime Therapeutics within ten (10) days of the date of this Order. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.

EDCV 04-407-VAP (KKx)

Date September 14, 2016

Jerry Beeman and Pharmacy Services, Inc., et al. v. Anthem Prescription
Management, Inc., et al.

Title

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
DEB TAYLOR

Not Reported

Deputy Clerk

Court Reporter

Attorney(s) Present for Plaintiff(s):

Attorney(s) Present for Defendant(s):

None Present

None Present

Proceedings:

Order Awarding Defendants’ Reasonable Attorney’s Fees and Costs Re:
Defendants’ Motion to Compel [Dkt. 434]
I.
INTRODUCTION

On July 28, 2016, Defendants1 filed a Motion to Compel proposed class representative
Carrie McCarthy (“McCarthy”) to produce documents and appear at a deposition (“Motion to
Compel”). ECF Docket No. (“dkt.”) 434. Defendants also sought their reasonable expenses
incurred in bringing the Motion to Compel. Id. Plaintiffs’ Counsel2 failed to timely respond to
Defendants’ request to meet and confer pursuant to Local Rule 37-1, failed to participate in the
preparation of a Joint Stipulation pursuant to Local Rule 37-2, and McCarthy did not file an
Opposition to Defendants’ Motion to Compel. See dkt. 434-2, Declaration of Christopher
Chorba in support of Motion to Compel (“Chorba Decl.”), ¶ 9.
1

“Defendants” refers to the non-settling defendants Argus Health Systems, Inc.,
Benescript Services, Inc., FFI RX Managed Care, First Health Services Corporation d/b/a
Virginia First Health Services Corporation, Mede America Corp., National Medical Health Card
Systems, Inc., Pharmacare Management Services, Inc., Prime Therapeutics, Restat Corporation,
RX Solutions, Inc., Tmsys, Inc., and WHP Health Initiatives, Inc.
2

“Plaintiffs’ Counsel” refers to Alan M. Mansfield of The Consumer Law Group, and
Michael A. Bowse of Browne George Ross, LLP.
Page 1 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

On August 15, 2016, the Court granted Defendants Motion to Compel. Dkt. 436. The
Court further found an award of reasonable attorney’s fees and costs to Defendants payable by
Plaintiffs’ Counsel were warranted and directed the parties to file supplemental briefing
regarding the appropriate amount of such award. Id.
On August 22, 2016, Defendants filed declarations from counsel Benjamin J. Fox and
Brian H. Newman regarding the fees and costs incurred in preparing and filing the Motion to
Compel and requesting an award of $26,675.00 to defendant Argus Health Systems, Inc. and
$2,881.00 to defendant Prime Therapeutics.3 See Dkt. 437, Suppl. Brief; Dkt. 437-1, Fox Decl.;
Dkt. 437-2, Newman Decl. According to the declarations, Jeremiah Levine, an associate at
Morrison & Foerster LLP, spent a total of 35 hours preparing Defendants’ Motion to Compel at
an hourly rate of $595.00, Silvia Specht, the senior paralegal at Morrison & Foerster LLP, spent a
total of 3.5 hours assisting in preparation of the Motion to Compel at an hourly rate of $350.00,
Mr. Fox spent a total of 5 hours reviewing and revising the Motion to Compel at an hourly rate of
$925.00, and Mr. Newman spent a total of 6.7 hours at an hourly rate of $430.00. Id.
On August 29, 2016, Plaintiffs’ Counsel filed an Opposition to Defendants’ fees request
with a supporting declaration from Plaintiffs’ Counsel, Michael Bowse. Dkt. 441, Opp.; Dkt.
441-1, Bowse Decl. Plaintiffs’ Counsel argues for the first time that an award of sanctions against
McCarthy is not permitted by Federal Rules of Civil Procedure. Id. Plaintiffs’ Counsel does not
oppose the specific amount of attorney’s fees requested.
On August 30, 2016, Defendants filed a Reply with a supplemental declaration of Mr.
Fox. Dkt. 443.
For the reasons set forth below, the Court awards Defendant Argus Health Systems, Inc.
reasonable attorney’s fees and costs in the sum of $15,750.00 and defendant Prime Therapeutics
reasonable attorney’s fees and costs in the sum of $2,881.00 payable by Plaintiffs’ Counsel.
II.
LEGAL STANDARD
“The court may impose an appropriate sanction – including the reasonable expenses and
attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair
examination of the deponent.” Fed. R. Civ. P. 30(d)(2); see also F.C.C. v. Mizuho Medy Co.,
257 F.R.D. 679, 683 (S.D. Cal. 2009); Biovail Labs., Inc. v. Anchen Pharm., Inc., 233 F.R.D. 648,
655 (C.D. Cal. 2006) (granting motion to compel deposition of non-party where non-party’s

3

Defendants also request for the first time in their supplemental brief an award of
sanctions in the amount of $22,500.00 pursuant to Title 28 of the United States Code, section
1927. See dkt. 437. The Court declines to consider Defendants’ new request, which is beyond
the scope of the supplemental briefing ordered.
Page 2 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

counsel unreasonably, prematurely terminated deposition, thereby delaying and frustrating the
fair examination of the non-party deponent).
Moreover, pursuant to Local Rule 7-12, a party’s failure to timely oppose a motion may be
deemed consent to the granting of the motion and sanctions are available when a party fails to
adequately comply with the applicable Local Rules (e.g., Local Rule 37-2’s requirement of
cooperation in preparation of a joint stipulation regarding discovery disputes). L.R. 7-12; 37-4.
When an award of attorney’s fees is authorized, the court must calculate the proper
amount of the award to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983). Reasonableness is generally determined using the “lodestar” method, where a court
considers the work completed by the attorneys and multiplies “the number of hours reasonably
expended on the litigation by the reasonable hourly rate.” Gracie v. Gracie, 217 F.3d 1060, 1070
(9th Cir. 2000) (internal citations omitted). The moving party has the burden to produce
evidence that the rates and hours worked are reasonable. See Intel Corp. v. Terabyte Int’l, 6
F.3d 614, 623 (9th Cir. 1983).
III.
DISCUSSION
Here, as set forth in the Order granting Defendants’ Motion to Compel, the Court found
Plaintiffs’ Counsel’s actions in frustrating and delaying McCarthy’s deposition and failure to
cooperate in preparation of the joint stipulation warrant requiring Plaintiffs’ Counsel to pay
Defendants’ reasonable expenses incurred in bringing the Motion to Compel.4 See Dkt. 436
(citing F.C.C., 257 F.R.D. at 683; Fed. R. Civ. P. 30(d)(2); L.R. 37-4). However, as discussed
below, the Court finds the amounts requested in Defendants’ supplemental briefing to be
unreasonable and, thus, reduces the sum to be awarded accordingly.
The Court recognizes preparing the Motion to Compel involved coordinating among
defense counsel at multiple law firms, preparing an introduction that summarized over ten years
of litigation, and explaining the relevance of sixty requests for production. See dkt. 434. While
the legal analysis was not particularly complex, defense counsel succinctly provided
individualized analysis of each of McCarthy’s largely boilerplate objections. Id.
The Court finds the time Mr. Levine spent preparing Defendants’ portion of the Joint
Stipulation, 35 hours, to be excessive for a fourth year associate practicing complex litigation,
particularly where approximately an additional 5 hours of senior partner time were required to
review and revise Mr. Levine’s work. Hence, the Court finds it appropriate to strike 15 hours.
See Hensley, 461 U.S. at 434.

4

The Court declines to reconsider the August 15, 2016 Order granting Defendants’
unopposed Motion.
Page 3 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __

Moreover, the Court finds Mr. Levine’s hourly rate of $595.00 to be excessive for a
fourth year associate. “[T]he court may exercise its discretion to determine reasonable hourly
rates based on its experience and knowledge of prevailing rates in the community.” In re Toys R
Us-Delaware, Inc.--Fair & Accurate Credit Transactions Act (FACTA) Litig., 295 F.R.D. 438,
463 (C.D. Cal. 2014). The relevant community is that in which the district court sits. See
Schwarz v. Sec’y of Health and Human Serv., 73 F.3d 895, 906 (9th Cir. 1995). After reviewing
awards in similar cases, and based on its general knowledge of rates in the Central District of
California legal community for attorneys of comparable skill and experience, the Court concludes
that the hourly rate Defendants’ counsel seeks for Mr. Levine’s time is excessive for this case.
The Court finds an hourly rate of $495.00 to be reasonable. See, e.g., POM Wonderful, LLC v.
Purely Juice, Inc., No. CV 07–2633, 2008 WL 4351842, *4 (C.D. Cal. Sept. 22, 2008) (finding
rates of $475 to $750 for partners and $275 to $425 for associates reasonable in consumer class
action).
In summary, the Court finds the following hours and rates reasonable: Mr. Fox 5 hours at
$925.00 per hour, Mr. Levine 20 hours at $495.00 per hour, Ms. Specht 3.5 hours at $350 per
hour, and Mr. Newman 6.7 hours at $430 per hour. Accordingly, the Court finds an award of
$15,750.00 to defendant Argus Health Systems, Inc. and $2,881.00 to defendant Prime
Therapeutics to be reasonable under the circumstances of this case.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Counsel shall pay as reasonable
attorney’s fees and costs the sum of $15,750.00 to defendant Argus Health Systems, Inc. and the
sum of $2,881.00 to defendant Prime Therapeutics within ten (10) days of the date of this
Order.

Page 4 of 4

CIVIL MINUTES—GENERAL

Initials of Deputy Clerk __