Prasad et al v. County of Sutter et al

Filing 103

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/17/13. IT IS HEREBY ORDERED that plaintiffs are awarded reasonable expenses under FRCP 37(a) in the amount of $18,022.50 against defendants. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARY PRASAD, et al.,

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No. 2:12-cv-00592 TLN JFM

Plaintiff,
v.

ORDER

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COUNTY OF SUTTER, et al.,

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Defendants.

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On June 12, 2013, a hearing on plaintiffs’ amended motion to compel (ECF No. 84) was

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held. Following the hearing, the court permitted defendants to file a letter brief addressing

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plaintiffs’ request for reasonable expenses, pursuant to Fed. R. Civ. P. 37(a)(5), within seven days

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of the date of the order. ECF No. 91. The court also permitted plaintiffs to file a reply letter brief

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within seven days thereafter. Id. Upon consideration of the hearing, as well as an examination of

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the parties’ initial filings, subsequent letter briefs, and supporting documents, the court orders

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plaintiffs’ request for reasonable expenses is granted and plaintiffs shall be awarded reasonable

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expenses in the amount of $18,022.50.

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Federal Rule of Civil Procedure 37(a)(5) provides that if a motion to compel is granted, or

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if the requested discovery is provided after the motion was filed, the court must require the party

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whose conduct necessitated the filing of the motion to pay reasonable expenses including

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attorney’s fees. Fed. R. Civ. P. Rule 37(a)(5). However, the court must not order payment if the

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nondisclosure was substantially justified or if other circumstances make an award unjust. Id.
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Plaintiffs seek expenses in the amount of $18,022.50 to cover the cost of bringing their

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motion to compel. ECF No. 97. Plaintiffs’ expenses include telephone calls and correspondence,

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drafting a meet and confer letter, and preparing both the amended motion to compel and the joint

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statement. Id. at 3. Defendants set forth a number of objections to plaintiffs’ request, each of

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which will be addressed in turn.

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First, defendants argue that “only two matters were actually matters which needed

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resolution by this court: the scope and/or privacy of inmates [sic] names . . . and personnel

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records of the Sutter County defendants.” ECF No. 92 at 1. Defendants also argue that “any

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award would be unjust given the various circumstances surrounding the variety of documents

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included in [plaintiffs’] motion. Id. at 3. Rule 37(a)(5)(A) provides for an award of reasonable

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expenses if a motion to compel is granted “or if the disclosure or requested discovery is provided

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after the motion was filed.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). While the parties

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confirmed, both in their joint statement and during the hearing on plaintiffs’ amended motion to

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compel, that a number of disputed issues had been resolved, that alone does not relieve

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defendants from payment of reasonable fees under Rule 37(a)(5). Here, the resolution of

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plaintiffs’ disputes did not occur until after plaintiffs filed their motion to compel and amended

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motion to compel. Thus, Rule 37(a)(5)(A) provides for an award of reasonable expenses because

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defendants’ disclosure of the requested information was provided after plaintiffs’ motion was

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filed.

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Second, defendants argue that the failure to respond to discovery requests have not

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prejudiced plaintiffs. ECF No. 92 at 1. However, the court finds that plaintiffs have been

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prejudiced by, at the very least, having to conduct depositions without documents relevant to

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plaintiffs’ claims. See ECF No. 97 at 2; see also ECF No. 87-2 at 38-39 (e-mail to defense

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counsel requesting personnel files in advance of noticed depositions).

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Third, defendants argue that plaintiffs did not “attempt to narrow the request in light of the

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pending motion to dismiss.” ECF No. 92 at 1. However, filing a motion to dismiss does not

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function as an automatic stay of an action, including any outstanding discovery requests.

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Defendants were therefore not substantially justified in failing to respond to plaintiffs’ discovery
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requests which were served six months prior to the filing of defendants’ motion to dismiss.

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Moreover, defendants did not request a stay of the proceedings when they initially filed a motion

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to dismiss on December 26, 2012. Rather, defendants waited until plaintiffs filed their motion to

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compel to raise the issue of a stay pending the outcome of the motion to dismiss in an effort to

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justify their failure to respond to outstanding discovery requests. In any event, the court has

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already denied defendants’ request for a protective order staying the discovery proceedings,

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noting the approaching September 6, 2013, deadline for expert witness disclosures. ECF No. 91

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at 1.

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Fourth, defendants argue that they were substantially justified in not disclosing the names

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of inmates housed in cells MAX-2 and MAX-3 because the identification was only recently

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clarified by plaintiffs on June 3, 2013. ECF No. 92 at 2. Defendants also argue that they were

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“substantially justified in limiting its own exposure to liability from third parties.” Id.

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Defendants were served with plaintiffs’ initial request on July 13, 2012. ECF No. 87-1 at 9-10.

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The request sought the identification of “ANY and ALL inmates celled in the same housing pod,

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unit, OR cell as NATHAN PRASAD.” Id. While defendants attempt to argue that the

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identification was only recently clarified on June 3, 2013, plaintiffs’ counsel addressed this issue

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in a letter to defense counsel dated March 7, 2013. ECF No. 87-2 at 11-12. The letter clarifies a

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conversation between the parties that took place on February 27, 2013. Id. In this letter,

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plaintiffs’ counsel explained the request by stating that “at a minimum, this would encompass any

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inmates housed in any of the three ‘tanks’ or cells that appear to be located on the same hallway

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where Nathan Prasad was housed.” Id. Thus, defendants are incorrect in asserting that this

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matter was only clarified in June. Rather, plaintiffs clarified their request with defendants as

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early as February 27, 2013. The court also finds that defendants’ general claim of privacy does

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not substantially justify their failure to respond to plaintiffs’ discovery request. The court finds

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the privacy argument particularly unpersuasive given the fact that defendants failed to respond to

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a protective order sent by plaintiffs on March 7, 2013. ECF No. 87-2 at 2. Defendants cannot

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neglect to review or enter into a protective order then use the absence of a protective order to

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support their failure to respond to discovery requests. Therefore, defendants were not
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substantially justified in failing to disclose the names of inmates housed in cells located on the

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same hallway as Mr. Prasad.
Finally, defendants argue that plaintiffs’ hourly rate must be that of the “prevailing market

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rate for the Sacramento community” and that “any hours must be parsed out or reduced for

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matters not reasonably included.” ECF No. 92 at 3-4. The court finds both of these arguments

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unavailing, and will address them separately below.

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Regarding the hourly rate, generally, an award should be a reasonable fee according to the

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relevant legal community. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). However,

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San Francisco rates, which are outside the district in which the court sits, are permitted if

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“Sacramento attorneys with adequate expertise were unavailable.” Gates, 987 F.2d at 1406.

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“[P]laintiffs must only prove the unavailability of counsel within the local forum in order to

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justify the use of outside counsel.” Barjon v. Dalton, 132 F.3d 496, 501 (9th Cir. 1997) (citing

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Gates, 987 F.2d at 1405) (emphasis omitted). Moreover, “Gates allows proof of either

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unwillingness or inability due to lack of experience, expertise, or specialization.” Barjon, 132

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F.3d at 501 (emphasis original); see also South Yuba River Citizens League and Friends of River

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v. National Marine Fisheries Service, No. CIV. S-06-2845 LKK/JFM, 2012 WL 1038131, at *6

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(E.D. Cal. Mar. 27, 2012) (concluding “that the lack of experience, expertise, or specialization

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requirement applies only to the inquiry of whether local firms are able to perform the work, and

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not whether they are willing”). Here, plaintiffs seek an hourly rate of $445.00 for their principal

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counsel, Kathryn Mantoan. This rate is consistent with the San Francisco, not the Sacramento,

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legal community. In support of their request, plaintiffs explain that local counsel was unwilling

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to represent them in this action (Prasad Decl. ¶2, ECF No. 97-3 at 2) and “[t]here are very few

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lawyers or law firms with the specialized knowledge, experience and resources to bring a civil

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rights case of this type” (White Decl. ¶ 15, ECF No. 97-2 at 6). The court finds plaintiffs have

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met their burden of establishing unavailability by showing both an unwillingness of local counsel

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and a limited availability of qualified local counsel.1 Gates, 987 F.2d at 1405; Barjon, 132 F.3d at

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Defendants did not provide evidence that might counter this finding, such as potentially
available firms in the Sacramento area.
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501. Therefore, the court finds the relevant community is San Francisco.

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Regarding the reasonableness of plaintiffs’ rate, a reasonable hourly rate is defined as the

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“rate prevailing in the community for similar work performed by attorneys of comparable skill,

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experience, and reputation.” Barjon, 132 F.3d at 501 (internal quotation marks omitted). “To

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inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to

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produce satisfactory evidence-in addition to the attorney’s own affidavits-that the requested rates

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are in line with those prevailing in the community for similar services by lawyers of reasonably

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comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984).

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In support of their requested hourly rate of $445.00 for Ms. Mantoan’s work on the motion to

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compel, plaintiffs provided the National Law Journal’s December 2012 annual survey of law firm

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billing rates covering rates from 2011. The annual survey includes the rates of some San

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Francisco law firms. ECF No. 97-1 at 47. Plaintiffs also provided Ms. Mantoan’s resume which

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indicates her skills and experience in the relevant area of law since her admission to the

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California bar in 2005. Id. at 24. The court finds plaintiffs have met their burden of establishing

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the requested rate is comparable to those prevailing in the San Francisco community.2 Blum, 465

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U.S. at 895 n.11; see also L.H. v. Schwarzenegger, 645 F.Supp.2d 888, 895 (E.D. Cal. 2009)

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(finding fees requested for plaintiffs’ law firm reasonable, and noting the rates were awarded to

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some of the attorneys in other prison litigation cases). Therefore, defendants’ argument for a

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reduced hourly rate fails.

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Regarding defendants’ argument for a reduction of billed hours, plaintiffs submitted a

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summary of the hours worked on the motion to compel, and reduced the number of hours used in

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calculating the total amount requested. See ECF No. 97-1 at 11-15. A review of the billing

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summary shows that plaintiffs requested reimbursement for only Ms. Mantoan’s work, and have

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omitted all other attorney and paralegal billing charges as well as any related costs. Id. The court

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finds the hours of work plaintiffs submitted for reimbursement were reasonably expended, and

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pertain only to plaintiffs’ motion to compel. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

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Defendants also failed to submit any evidence indicating what the court might consider to be a
reasonable hourly rate given the circumstances of the case. See Gates, 987 F.2d at 1397-98.
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Therefore, defendants’ argument for a reduction of hours also fails.
Accordingly, IT IS HEREBY ORDERED that plaintiffs are awarded reasonable expenses

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under Federal Rule of Civil Procedure 37(a) in the amount of $18,022.50 against defendants.

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Dated: July 17, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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pras0592.mtc

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