James v. Mehta

Filing 137

ORDER signed by Judge Lawrence K. Karlton on 8/23/2013 ORDERING that Plaintiff's 120 Motion for Reconsideration is DENIED. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES CORNELIUS JAMES, NO. CIV. S-10-1171 LKK/DAD P Plaintiff, 12 13 v. O R D E R 14 DEEPAK MEHTA, et al., 15 Defendants. / 16 17 Plaintiff has filed a motion for reconsideration of Magistrate 18 Judge Drozd’s decision to approve payment of Dr. Loman-Hoerth at 19 her customary hourly rate. 20 Minutes, ECF No. 110. 21 DENIES Plaintiff’s motion for reconsideration. For the reasons provided herein, the court I. BACKGROUND 22 23 See Pl’s Mot., ECF No. 120; 04/19/2013 Plaintiff, a state prisoner at the California Medical Facility 24 (“CMF”), is proceeding through counsel with an action filed 25 pursuant to 42 U.S.C. § 1983. 26 was denied physical and occupational therapy prescribed by Dr. Plaintiff claims, in part, that he 1 1 Catherine Lomen-Hoerth, a medical provider at UCSF Medical Center 2 in San Francisco, in violation of his Eighth Amendment rights. 3 Pl’s Second Am. Compl., ECF No. 19. 4 In another case filed in this district, Plaintiff brings 5 claims against the California 6 Rehabilitation 7 Disabilities Act and the Rehabilitation Act, for failing to provide 8 Plaintiff with access to prison activities and programs, including 9 physical therapy prescribed by Dr. Lomen-Hoerth. (“CDCR”), Department pursuant to of the Corrections Americans and with See James v. 10 Hubbard, et al., No. 2:08-cv-01857-RRC, at Fifth Am. Compl., ECF 11 No. 32.1 12 Defendants noticed the deposition of Dr. Lomen-Hoerth for 13 April 23, 2013. Plaintiff requested that the deposition be 14 coordinated with the deposition of Dr. Lomen-Hoerth in Plaintiff’s 15 other action filed in this district, James v. Hubbard, No. 2:08-cv- 16 01857-RRC, and served a cross-notice of deposition under both 17 cases. 18 On March 29, 2013, Plaintiff filed a Motion to Clarify 19 Deposition Procedures to “resolve . . . the issue of whether 20 federal practice allows for compensation in addition to the witness 21 fee of a treating doctor who has not been retained as an expert by 22 any party, and if so, what amount of compensation is appropriate.” 23 //// 24 25 26 1 Plaintiff has filed a Notice of Related Cases for each of his cases filed in this district and the parties refer to these two cases as being related. The cases are not, in fact, related. 2 1 Pl’s Mot., ECF No. 102.2 2 On April 12, 2013, the parties filed a Joint Statement re: 3 Discovery Disagreements, pursuant to Local Rule 251, to set forth 4 their respective positions as to the appropriate fee, and the 5 burden 6 Statement, ECF No. 107. of payment, for Dr. Lomen-Hoerth’s testimony. Joint 7 Plaintiff noted that “[f]ederal courts are split on whether 8 a treating doctor may be compensated in addition to the witness fee 9 and mileage for deposition or trial testimony” and sought 10 clarification from the court as to “whether the doctor can receive 11 an hourly fee for providing deposition testimony” in “excess of the 12 appearance fee.” 13 this cost from the Nonappropriated Fund under General Order 510.” 14 Id. at 4; see also Pl’s Mot., ECF No. 109. Id. at 3-4. Plaintiff also requested “to incur 15 Defendants contended that it was not “fair to have defendants 16 bear the entire cost of the deposition when it is plaintiff who 17 seeks to depose Dr. Lomen-Hoerth in the companion case” and that 18 “a reasonable resolution . . . would be for the parties to agree 19 to split the cost of Dr. Lomen-Hoerth’s $700 per hour fee with half 20 of the time being paid by the plaintiff and the other half of the 21 time being paid by the defendants.” Id. at 5. 22 On April 19, 2013, following a hearing on the Motion to 23 Clarify Deposition Procedures, Magistrate Judge Drozd “approved 24 25 26 2 The parties agree that the U.C. Regents’ standard compensation is $700 per hour for time spent giving a deposition, pursuant to California Code of Civil Procedure § 2034.430. 3 1 payment of the customary hourly rate of Dr. Loman-Hoerth to acquire 2 testimony in the case” and determined that the “parties shall split 3 the cost.” See 04/19/2013 Minutes, ECF No. 100. 4 On April 30, 2013, Magistrate Judge Drozd approved Plaintiff’s 5 request to incur costs for Dr. Loman-Hoerth’s compensation, in the 6 amount of $700, from the Nonappropriated Fund. Order, ECF No. 121. 7 On May 3, 2013, Plaintiff filed the instant motion for 8 reconsideration of Magistrate Judge Drozd’s decision to approve 9 payment of Dr. Loman-Hoerth at her customary hourly rate. 10 Pl’s Mot., ECF No. 120. 11 II. STANDARD FOR RECONSIDERATION 12 Under Eastern District of California Local Rule 303(c), “A 13 party seeking reconsideration of a Magistrate Judge’s ruling shall 14 file a request for reconsideration by a Judge. . . . Such request 15 shall specifically designate the ruling, or part thereof, objected 16 to and the basis for that objection.” 17 Local Rule 303(f) provides that “[t]he standard that the 18 assigned Judge shall use in all such requests is the ‘clearly 19 erroneous or contrary to law’ standard set forth in 28 U.S.C. § 20 636(b)(1)(A).” 21 22 23 24 25 The latter statute provides: Notwithstanding any provision of law to the contrary . . . a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except [certain specified matters]. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law. 26 4 1 28 U.S.C. § 636(b)(1)(A). 2 An order is “clearly erroneous” if “although there is evidence 3 to support it, the reviewing court on the entire evidence is left 4 with the definite and firm conviction that a mistake has been 5 committed.” 6 68 S.Ct. 525, 92 L.Ed. 746 (1948). 7 erroneous’ standard is significantly deferential. . . . .” 8 Concrete Pipe and Prods. v. Constr. Laborers Pension Trust, 508 9 U.S. 602, 622, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993). United States v. U.S. Gypsum Co., 333 U.S. 364, 395, to law” standard, district court may Under the 10 “contrary 11 independent review of purely legal determinations by a magistrate 12 judge. 13 F.Supp.2d 980, 983 (S.D. Cal. 1999) (Whelan, J.). 14 mere disagreement with a ruling is not grounds for reconsideration. 15 United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 16 (E.D. Cal. 2001) (Wanger, J.). conduct Computer Economics, Inc. v. Gartner Group, Inc., 50 III. 17 18 a “[R]eview under the ‘clearly The movant’s ANALYSIS Upon review of Plaintiff’s arguments and the relevant legal 19 authorities, the court determines that Magistrate Judge Drozd’s 20 decision to approve payment of Dr. Loman-Hoerth at her customary 21 hourly rate was neither “clearly erroneous” nor “contrary to 22 law.” 23 24 The court therefore DENIES Plaintiff’s motion to reconsider the Magistrate Judge’s ruling. 25 IT IS SO ORDERED. 26 See Pl’s Mot., ECF No. 120. DATED: August 23, 2013. 5

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