BNSF Railway Company v. San Joaquin Valley Railroad Company

Filing 275

ORDER ORDERING sanctions against Attorney James B. Hicks, personally, be set in the amount of $56,263.41, to be paid directly to Briggs and Morgan, P.A., within thirty days of this order, document 87 . In the event payment is not timely made, the Court shall recommend that the District Judge impose further sanctions. Order signed by Magistrate Judge Sandra M. Snyder on 12/7/2012. (Rooney, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BNSF RAILWAY COMPANY,
Plaintiff,

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CASE NO. 1:08-cv-01086-AWI-SMS

ORDER SETTING AMOUNT OF SANCTIONS
DUE FROM ATTORNEY JAMES B. HICKS

v.
SAN JOAQUIN VALLEY RAILROAD
COMPANY, et al.,

(Doc. 87)
Defendants.
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On November 17, 2009, the Court granted, in part, Plaintiff’s Motion for Sanctions

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against James B. Hicks, the former counsel for Defendants San Joaquin Valley Railroad

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Company and Tulare Valley Railroad Company, for his misconduct at the deposition of witness

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Charles Patterson. Doc. 87. The order imposed monetary sanctions consisting of attorney’s fees

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and costs incurred by Plaintiff in preparing for and attending Patterson’s initial deposition, its

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subsequent motion for sanctions, and Patterson’s re-opened deposition. Thereafter, the Court

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received the declaration of Attorney Paul J. Hemming for attorneys’ fees and costs with exhibits

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attached (Doc. 94); Defendant’s response and objections to itemization of fees and costs re:

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sanctions motion with Hicks’ declaration and exhibit (Doc. 98); and, Defendant’s objections to

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BNSF’s evidence re: sanctions (Doc. 99). At Mr. Hicks’ request, the Court reserved entry of its

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order setting the sanctions amount pending resolution of the case. See Doc. 98.

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Calculating attorneys’ fees. To calculate an award of reasonable attorney fees, courts
use the lodestar approach set forth in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983),1. This

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approach requires the Court to first determine the hours reasonably spent on the litigation, then
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multiply them by a reasonable hourly rate. Id. at 433-34. In determining the "lodestar" figure,

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courts are to consider the following factors: (1) the time and labor required; (2) the novelty and

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difficulty of the issues; (3) the skill required to perform the legal service properly; (4) the extent

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to which the attorney's work on the case precluded other legal employment; (5) the customary

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fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or
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circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation

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and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the

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professional relationship between the lawyer and the client; and (12) awards in similar cases.

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Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006), quoting McGrath v. County of

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Nevada, 67 F.3d 248, 252 n. 4 (9th Cir. 1995).

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Although the lodestar fee is presumed to be reasonable, the Court may adjust it upward

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or downward as necessary to determine a reasonable fee. Blum v. Stenson, 465 U.S. 886, 897

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(1984); Hensley, 461 U.S. at 434. The moving party has the burden of producing sufficient

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evidence that its hourly rates are reasonable. Blum, 465 U.S. at 896. A court has wide latitude in

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determining the number of hours reasonably expended and may reduce the hours if the time

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claimed is excessive, redundant, or otherwise unnecessary. Cunningham v. County of Los
Angeles, 879 F.2d 481, 484 (9th Cir. 1988), cert. denied, 493 U.S. 1035 (1990).

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Abrogated on other grounds by Texas State Teachers Ass’n v. Garland Independent School District, 489
U.S. 782 (1989); Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 518 (9 th Cir. 2000).

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In this case, Plaintiff requests an award of $56,263.41, including $48,421, attorneys’ fees;
$1000, Westlaw expenses; $3051.89, travel expenses; and $3790.52, fees for court reporter and

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videographer. Plaintiff supports its request with the declaration of its attorney, Paul J. Hemming,
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copies of billing statements prepared for Plaintiff, and a spreadsheet in which Mr. Hemming

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adjusted billing entries to reflect only that work attributable to Mr. Patterson’s depositions and

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Plaintiff’s motion for sanctions.

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In considering the twelve factors listed above, the Court finds that Plaintiff’s attorneys,
Briggs and Morgan appropriately requested fees only for the period between June 1, 2009, the

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date on which its attorneys began preparing for Patterson’s initial deposition, through October

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30, 2009, the date of the sanctions hearing. In general, the individual time entries reflect

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appropriate use of time, without evidence of unnecessary duplication of effort or padding.

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Plaintiff’s attorneys appropriately prepared for the depositions, and appropriately researched and

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argued the motion for sanctions to ensure both the legal soundness of the motion and zealous

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advocacy on behalf of their client.

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Both of Plaintiff’s attorneys have specific knowledge and experience in representing

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railroad corporations, necessary attributes in litigation construing through rates for interline

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railroad freight traffic. Mr. Thornton, who has represented Plaintiff since the 1970's, is a

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nationally recognized expert in railroad and transportation law. Mr. Hemming’s hourly billing

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rate of $250.00 and Mr. Thornton’s hourly billing rate of $300.00 were reasonable rates for

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attorneys representing a large corporation in specialized litigation before this Court. The Court

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specifically notes that Mr. Thornton’s work in this case was billed at an amount significantly

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lower than his typical hourly rate of $580.00. Because Mr. Thornton billed a reduced billing rate,

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the Court rejects Mr. Hicks’ contention that the billing rate of Mr. Hemming, who has less

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experience than Mr. Thornton, was too high.

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Having observed all three attorneys’ tactics and demeanor throughout this case, the Court
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fully understands Mr. Hemming’s observation that “dealing with Hicks has been more costly

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than dealing with any other opposing counsel.” Doc. 94, ¶ 2 at 2. As noted in the original

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sanctions order, Mr. Hicks engaged in repeated and unnecessary obstructive tactics and other

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misbehavior in conjunction with the Patterson deposition and Plaintiff’s subsequent motion for

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sanctions against him. Mr. Hick’s actions unnecessarily complicated the process, and

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unnecessarily inflated the amount of time necessary, for Plaintiff to depose Mr. Patterson,
Defendant’s designated corporate representative for numerous issues.

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Having reviewed the November 17, 2009 order, the declaration of Plaintiff’s counsel, and

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the response and objections of Mr. Hicks, and having considered the facts and arguments in light

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of applicable law, the Court hereby orders sanctions against Attorney James B. Hicks,

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personally, be set in the amount of $56,263.41, to be paid directly to Briggs and Morgan, P.A.,

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within thirty (30) days of this order. In the event that Mr. Hicks fails to make timely payment of

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the sanctions amount, this Court shall recommend that the District Judge impose further

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sanctions, which may include, but shall not be limited to, citation for disciplinary action to the

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State Bar of California and further monetary sanctions.

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IT IS SO ORDERED.

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Dated:
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December 7, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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