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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES CORNELIUS JAMES,
NO. CIV. S-10-1171 LKK/DAD P
Plaintiff,

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v.

O R D E R

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DEEPAK MEHTA, et al.,

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Defendants.
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Plaintiff has filed a motion for reconsideration of Magistrate

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Judge Drozd’s decision to approve payment of Dr. Loman-Hoerth at

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her customary hourly rate.

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Minutes, ECF No. 110.

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DENIES Plaintiff’s motion for reconsideration.

For the reasons provided herein, the court

I. BACKGROUND

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See Pl’s Mot., ECF No. 120; 04/19/2013

Plaintiff, a state prisoner at the California Medical Facility

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(“CMF”),

is

proceeding

through

counsel

with

an

action

filed

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pursuant to 42 U.S.C. § 1983.

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was denied physical and occupational therapy prescribed by Dr.

Plaintiff claims, in part, that he

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Catherine Lomen-Hoerth, a medical provider at UCSF Medical Center

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in San Francisco, in violation of his Eighth Amendment rights.

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Pl’s Second Am. Compl., ECF No. 19.

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In another case filed in this district, Plaintiff brings

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claims

against

the

California

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Rehabilitation

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Disabilities Act and the Rehabilitation Act, for failing to provide

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Plaintiff with access to prison activities and programs, including

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physical therapy prescribed by Dr. Lomen-Hoerth.

(“CDCR”),

Department

pursuant

to

of
the

Corrections
Americans

and
with

See James v.

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Hubbard, et al., No. 2:08-cv-01857-RRC, at Fifth Am. Compl., ECF

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No. 32.1

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Defendants noticed the deposition of Dr. Lomen-Hoerth for

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April 23, 2013.

Plaintiff requested that the deposition be

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coordinated with the deposition of Dr. Lomen-Hoerth in Plaintiff’s

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other action filed in this district, James v. Hubbard, No. 2:08-cv-

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01857-RRC, and served a cross-notice of deposition under both

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cases.

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On March 29, 2013, Plaintiff filed a Motion to Clarify

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Deposition Procedures to “resolve . . . the issue of whether

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federal practice allows for compensation in addition to the witness

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fee of a treating doctor who has not been retained as an expert by

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any party, and if so, what amount of compensation is appropriate.”

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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.
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Pl’s Mot., ECF No. 102.2

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On April 12, 2013, the parties filed a Joint Statement re:

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Discovery Disagreements, pursuant to Local Rule 251, to set forth

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their respective positions as to the appropriate fee, and the

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burden

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Statement, ECF No. 107.

of

payment,

for

Dr.

Lomen-Hoerth’s

testimony.

Joint

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Plaintiff noted that “[f]ederal courts are split on whether

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a treating doctor may be compensated in addition to the witness fee

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and

mileage

for

deposition

or

trial

testimony”

and

sought

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clarification from the court as to “whether the doctor can receive

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an hourly fee for providing deposition testimony” in “excess of the

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appearance fee.”

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this cost from the Nonappropriated Fund under General Order 510.”

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Id. at 4; see also Pl’s Mot., ECF No. 109.

Id. at 3-4.

Plaintiff also requested “to incur

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Defendants contended that it was not “fair to have defendants

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bear the entire cost of the deposition when it is plaintiff who

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seeks to depose Dr. Lomen-Hoerth in the companion case” and that

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“a reasonable resolution . . . would be for the parties to agree

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to split the cost of Dr. Lomen-Hoerth’s $700 per hour fee with half

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of the time being paid by the plaintiff and the other half of the

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time being paid by the defendants.”

Id. at 5.

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On April 19, 2013, following a hearing on the Motion to

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Clarify Deposition Procedures, Magistrate Judge Drozd “approved

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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.
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payment of the customary hourly rate of Dr. Loman-Hoerth to acquire

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testimony in the case” and determined that the “parties shall split

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the cost.”

See 04/19/2013 Minutes, ECF No. 100.

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On April 30, 2013, Magistrate Judge Drozd approved Plaintiff’s

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request to incur costs for Dr. Loman-Hoerth’s compensation, in the

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amount of $700, from the Nonappropriated Fund. Order, ECF No. 121.

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On May 3, 2013, Plaintiff filed the instant motion for

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reconsideration of Magistrate Judge Drozd’s decision to approve

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payment of Dr. Loman-Hoerth at her customary hourly rate.

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Pl’s

Mot., ECF No. 120.

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II. STANDARD FOR RECONSIDERATION

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Under Eastern District of California Local Rule 303(c), “A

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party seeking reconsideration of a Magistrate Judge’s ruling shall

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file a request for reconsideration by a Judge. . . . Such request

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shall specifically designate the ruling, or part thereof, objected

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to and the basis for that objection.”

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Local Rule 303(f) provides that “[t]he standard that the

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assigned Judge shall use in all such requests is the ‘clearly

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erroneous or contrary to law’ standard set forth in 28 U.S.C. §

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636(b)(1)(A).”

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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.

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28 U.S.C. § 636(b)(1)(A).

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An order is “clearly erroneous” if “although there is evidence

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to support it, the reviewing court on the entire evidence is left

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with the definite and firm conviction that a mistake has been

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committed.”

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68 S.Ct. 525, 92 L.Ed. 746 (1948).

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erroneous’ standard is significantly deferential. . . . .”

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Concrete Pipe and Prods. v. Constr. Laborers Pension Trust, 508

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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

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“contrary

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independent review of purely legal determinations by a magistrate

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judge.

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F.Supp.2d 980, 983 (S.D. Cal. 1999) (Whelan, J.).

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mere disagreement with a ruling is not grounds for reconsideration.

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United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131

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(E.D. Cal. 2001) (Wanger, J.).

conduct

Computer Economics, Inc. v. Gartner Group, Inc., 50

III.

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a

“[R]eview under the ‘clearly

The movant’s

ANALYSIS

Upon review of Plaintiff’s arguments and the relevant legal

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authorities, the court determines that Magistrate Judge Drozd’s

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decision to approve payment of Dr. Loman-Hoerth at her customary

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hourly rate was neither “clearly erroneous” nor “contrary to

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law.”

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The court therefore DENIES Plaintiff’s motion to reconsider
the Magistrate Judge’s ruling.

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IT IS SO ORDERED.

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See Pl’s Mot., ECF No. 120.

DATED: August 23, 2013.
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