Kaur et al v. City of Lodi et al

Filing 96

ORDER signed by Judge Garland E. Burrell, Jr. on 9/2/2015 ORDERING Defendant's 79 reconsideration motion and his alternative request for a reduction of the attorney's fees awarded by the Magistrate Judge are DENIED. Plaintiff's request for additional attorney's fees incurred in opposing Defendant's reconsideration motion is GRANTED in part. Further, Defendant shall pay Plaintiff $675 within ten days from the date on which this Order is filed. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUKHWINDER KAUR, individually and
as the successor in interest for
the Decedent PARMINDER SINGH
SHERGILL; KULBINDER KAUR SOHOTA;
SARABJIT SINGH SHERGILL,

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No. 2:14-cv-00828-GEB-AC

Plaintiffs,

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ORDER DENYING DEFENDANT’S
RECONSIDERATION MOTION AND
GRANTING PLAINTIFF
ADDITIONAL ATTORNEY’S FEES

v.

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CITY OF LODI; CITY OF LODI POLICE
DEPARTMENT; MARK HELMS, in his
individual capacity as the Chief
of Police for the City of Lodi;
SCOTT BRATTON, in his individual
capacity as a City of Lodi Police
Officer; ADAM LOCKIE, in his
individual capacity as a City of
Lodi Police Officer;

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Defendants.

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Defendant

Scott

Bratton

(“Defendant”)

seeks

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reconsideration of the Magistrate Judge’s Order filed on May 20,

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2015 (“May 20th Order”), under Federal Rule of Civil Procedure

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(“Rule”) 72(a) and Local Rule 303(c). Specifically, Defendant

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seeks reconsideration of the Magistrate Judge’s decision granting

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Plaintiff Sukhwinder Kaur (“Plaintiff”) attorney’s fees as the

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prevailing party on Defendant’s motion to quash a subpoena issued
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to non-party City of Manteca Police Department for Defendant’s

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personnel

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(“Mot.”) 1:2-5, ECF No. 79.) Defendant argues in the alternative

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that “the [attorney’s] fee[s] . . . be drastically reduced.” (Id.

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1:16-17.)

records.

(Mem.

P.

&

A.

Supp.

Mot.

Reconsideration

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The Magistrate Judge denied Defendant’s motion to quash

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the subpoena in an order filed on March 16, 2015, and in the same

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denial order required Defendant “to show cause . . . why the

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court should not order him to pay [P]laintiff’s attorney’s fees,

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pursuant to Fed R. Civ. P. 37(a)(5)[(B)], . . . for having to

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[oppose Defendant’s motion to quash the subpoena].”1 (Order to

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Show Cause 8:25-28, ECF No. 71.) The Magistrate Judge stated in

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the May 20th Order granting Plaintiff attorney’s fees:

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The declarations of [D]efendant’s attorneys
in opposition to the order to show cause
(“OSC”) offer no facts or arguments to
address
the
concerns
the
undersigned
expressed in denying the [M]otion . . . .
Specifically, the court had already held, in
connection with discovery involving the City
of Lodi [D]efendants, that past training
records and other personnel records could not
categorically be ruled to be not relevant,
even if the chances of finding relevant
documents might diminish with time . . . .
Also, [Defendant] sought a blanket protective
order for City of Manteca personnel records,
even though the court had already rejected
[Defendant’s] prior request for a blanket
protective order for City of Lodi personnel
records . . . . In addition, [Defendant]
failed to explain why he refused to produce a
single document even after [P]laintiff agreed

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The Magistrate Judge’s Order granting Plaintiff attorney’s fees states:
“The order to show cause mistakenly referred to Fed. R. Civ. P. 37(a)(5)(A),
which governs attorney’s fees for parties successfully moving to compel
discovery. However, the parties appear to have correctly argued the attorney’s
fees under Fed. R. Civ. P. 37(a)(5)(B), which governs the award of attorney’s
fees to the party successfully resisting the discovery motion, here, the
motion to quash [and for a protective order].” (Order to Show Cause 1:26-28
n.1, ECF No. 71.)

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to accept redacted versions of some of those
documents.

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(May 20th Order 2:2-14, ECF No. 76.) Defendant argues in his

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reconsideration

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attorney’s fees because his motion to quash was substantially

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justified for the following reasons:

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that

he

should

not

be

ordered

to

pay

[T]he issue raised by [his] motion . . . was
distinct from any issue previously decided by
this
court[;]
[further,
t]he
documents
contained within [Defendant’s] Manteca Police
Department personnel file contained much more
private and confidential information than
what was contained in his [City of] Lodi
file[;]
[t]he
only
redaction
that
the
Plaintiff was willing to accept during meet
and confer was redaction of [Defendant’s]
personal
identifying
information,
his
family’s
contact
information
and
social
security numbers . . . . [; and] Plaintiffs’
unwillingness to withdraw the request for
[certain documents it later conceded need not
be produced made] the motion . . . required.

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motion

(Mot. 1:12-9:15.) Plaintiff rejoins:

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[As t]he Magistrate Judge found in the order
denying
Defendant’s
motion[,]
.
.
.
Defendant’s withholding of clearly and, in
some cases admittedly, relevant discovery was
not supported by any legal authority . . . .
Defendant
[also]
produced
no
authority
supporting
his
position
that
he
could
unilaterally withhold personnel records from
discovery . . . . [Further,] . . . any
deficiency in the meet and confer process was
a product of Defendant’s failure to comply
with
[]his
obligation
under
the
Rules
[requiring Defendant, as the moving party, to
meet and confer prior to initiating a
discovery motion].

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(Pl.’s

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8:17.)2

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Opp’n

to

Def.’s

Mot.

Reconsideration

(“Opp’n”)

4:23-

Defendant filed a reply to Plaintiff’s opposition to Defendant’s
reconsideration motion, which Plaintiff “requests . . . be stricken and
disregarded,” (Pl.’s Obj. and Req. Strike Def.’s Reply Brief 2:14-16, ECF No.

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Local Rule 303(f) prescribes: “The standard that the

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assigned

Judge

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Judge’s ruling under Local Rule 303(c)] is the ‘clearly erroneous

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or

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636(b)(1)(A).”

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‘clearly erroneous’ when the district court is left with the

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definite and firm conviction that a mistake has been committed.”

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Mackey v. Frazier Park Pub. Util. Dist., No. 1:12-CV-00116-LJO-

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JLT, 2012 WL 5304758, at *2 (E.D. Cal. Oct. 25, 2012) (quoting

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Sec. Farms v. Int’l Bhd. of Teamsters, 124 F.3d 999, 1014 (9th

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Cir. 1997). “An order ‘is contrary to law when it fails to apply

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or

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procedure.’” Id. (quoting Knutson v. Blue Cross & Blue Shield of

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Minn., 254 F.R.D. 553, 556 (D. Minn. 2008)).

contrary

shall

to

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law’

“A

misapplies

use

in

[reconsideration

standard

[M]agistrate

relevant

set

forth

[J]udge’s

statutes,

of

in

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factual

case

law,

a

Magistrate

U.S.C.

findings

or

rules

§
are

of

Defendant has not shown the Magistrate Judge’s grant of

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attorney’s

fees

was

clearly

erroneous

or

contrary

to

law.

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Therefore, this portion of Defendant’s reconsideration motion is

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denied.

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Defendant also argues: “[E]ven if this [C]ourt finds

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that [Defendant] was not substantially justified in bringing [his

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motion

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Plaintiff[’]s[]

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drastically

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argues Plaintiff’s attorneys’ “rates are excessive,” and “the

to

quash,]

the

attorneys

reduced.”

fee
are

(Mot.

entries
not

submitted

reasonable

1:15-17.)

and

Specifically,

by

the

should

be

Defendant

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85), arguing: “[b]oth the Federal Rules of Civil Procedure and the Eastern
District of California’s Local Rules do not authorize the filing of a reply to
an opposition to objections to a [M]agistrate [J]udge’s ruling.” (Id. 1:22-24)
(emphasis in original). However, Plaintiff has not shown that Local Rule 303
negates the portion of Local Rule 230(d) that authorizes a reply brief to be
filed. Therefore, this request is denied.

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number of . . . hours [billed by Plaintiff’s attorneys are]

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grossly excessive and unreasonable.” (Id. 12:11-13:18.) However,

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Defendant has not shown that this argument in his motion was

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presented

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should not be used for a party to make a new argument that was

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not

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Biopharma, Inc. Derivative Litig., No. 3:14-CV-382-SI LEAD, 2014

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WL 5494890, at *1 (D. Or. Oct. 30, 2014) (stating: “Raising

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arguments or providing evidence in a motion for reconsideration

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that could have been included when litigating the original motion

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are not proper grounds for reconsideration.”) (citing Shalit v.

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Coppe,

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portion of Defendant’s reconsideration motion is denied.

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to

the

presented

182

Magistrate

to

the

F.3d 1124,

Judge.

Magistrate

1132

(9th

A

reconsideration

Judge.

Cir.

See

In

re

motion

Galena

1999)). Therefore,

this

Plaintiff argues she “is entitled to a further award of

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attorney’s

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Defendant’s

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Order.” (Opp’n 20:2-4.) Specifically, Plaintiff argues:

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fees

incurred

meritless

in

the

objections

process
to

the

of

responding

Magistrate

to

Judge’s

The Magistrate Judge found that Defendant’s
[motion to quash was] not substantially
justified . . . . Therefore, it follows that
Defendant’s
continued
resistance
and
subsequent involvement of the District Court
in the instant motion for reconsideration is
similarly unjustified.
(Id. 19:27-20:2.)
Plaintiff

attaches

a

declaration

from

each

of

her

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attorneys in support of her fees request. Plaintiff’s attorney

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Mark E. Merin avers he is “the sole proprietor of the Law Office

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of Mark E. Merin[;]” has “four decades” of “extensive experience

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in civil rights litigation . . . [;] charge[s] a fee of $450/hour

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for [his] work[;]” and worked 1.5 hours on the opposition. (Decl.
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Mark E. Merin Supp. Pl.’s Opp’n Def.’s Mot. Reconsideration ¶¶ 3-

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5, ECF No. 83-1.)

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he “ha[s] been employed by the Law Office of Mark E. Merin since

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2008, initially as a legal assistant and most recently as an

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associate attorney upon admission to the California State Bar in

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2013[;]” “[t]he Law Office of Mark E. Merin bills [his] work at

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an hourly rate of $250[;]” and he worked 14.75 hours “preparing”

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the opposition to Defendant’s reconsideration motion. (Decl. Paul

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H. Masuhara Supp. Pl.’s Opp’n Def.’s Mot. Reconsideration ¶¶ 5-6,

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Plaintiff’s attorney Paul H. Masuhara avers:

ECF No. 83-2.)

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“Reasonable attorney[’]s fees are . . . calculated

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based on the traditional ‘lodestar’ method. Under the lodestar

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method, the [c]ourt determines a reasonable fee by multiplying

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the number of hours reasonably expended on the litigation by a

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reasonable hourly rate.” Marrocco v. Hill, 291 F.R.D. 586, 587-88

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(D.

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hourly rate is “calculated according to the prevailing market

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rates in the relevant legal community, and the general rule is

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that the rates of attorneys practicing in the forum district,

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here the Eastern District of California-Sacramento, are used.”

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Gates

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(citation

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district court should ‘tak[e] into consideration the experience,

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skill, and reputation of the attorney . . . .” Gonzalez, 729 F.3d

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at 1205-06 (first alteration in original) (quoting Dang v. Cross,

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422 F.3d 800, 813 (9th Cir. 2005)). “The fee applicant has the

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burden of producing satisfactory evidence, in addition to the

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affidavits of its counsel, that the requested rates are in line

Nev.

v.

2013)

(internal

Deukmeijian,
omitted).

citations

987

“Within

F.2d

1392,

this

6

omitted).

1405

geographic

The

(9th

reasonable

Cir.

community,

1992)
the

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with those prevailing in the community for similar services of

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lawyers of reasonably comparable skill and reputation . . . .”

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Johnson v. Multnomah Cnt., 815 F.2d 1258, 1262-63 (9th Cir. 1987)

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(emphasis added).

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Plaintiff provides authority evincing that the hourly

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rate

sought

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(citing cases). However, Plaintiff has not met her “burden of

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producing

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affidavit[] . . . , that [his] requested rate[ is] in line with

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those prevailing in the community for similar services of lawyers

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of reasonably comparable skill and reputation.” Johnson, 815 F.2d

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at 1262 (emphasis added). Therefore, Plaintiff is only entitled

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to

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reconsideration motion.

fees

for

is

satisfactory

for

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Merin

Merin’s

reasonable.

evidence,

work

on

in

the

(See

Opp’n

addition

opposition

to

to

13:9-14:5)

[Masuhara’s]

Defendant’s

Plaintiff has also shown that the amount of time Merin

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spent

preparing

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motion

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Merin reasonably billed .5 hours “review[ing] Defendant[’s] . . .

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reconsideration [motion]” and discussing it with co-counsel, and

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one hour “review[ing], comment[ing on] and revis[ing the] draft

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[of the] opposition.” (Merin. Decl. ¶ 5.) Therefore, Defendant

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shall pay Plaintiff $675, which reflects 1.5 hours of Merin’s

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work billed at $450/hour, within ten days from the date on which

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this Order is filed.

is

the

opposition

reasonable.

I.
For

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motion

and

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attorney’s

the

his
fees

Defendant’s

Specifically,

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to

stated

awarded

by

has

shown

that

CONCLUSION

reasons,

alternative

Plaintiff

reconsideration

Defendant’s

request
the
7

for

a

Magistrate

reconsideration

reduction
Judge

are

of

the

DENIED.

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Plaintiff’s request for additional attorney’s fees incurred in

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opposing Defendant’s reconsideration motion is GRANTED in part.

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Further, Defendant shall pay Plaintiff $675 within ten days from

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the date on which this Order is filed.

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Dated:

September 2, 2015

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