Perez v. Tilton et al

Filing 544

ORDER GRANTING 543 Stipulation to Pay Plaintiffs Interim Fees and to Stay Motion to Compel Fees. Signed by Judge JEFFREY S. WHITE on 8/27/10. (jjoS, COURT STAFF) (Filed on 8/27/2010)

Perez v. Cate et al

Doc. 544

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DONALD SPECTER #83925 ALISON HARDY #135966 PRISON LAW OFFICE 1917 Fifth Street Berkeley, CA 94710 [e-mail] [e-mail] Telephone: [phone] Attorneys for Plaintiffs EDMUND G. BROWN JR. Attorney General of the State of California PHILLIP LINDSAY, State Bar No. 204444 Deputy Attorney General 110 West A St., Suite 1100 San Diego, CA 92101 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA Case No. C05-5241 JSW C A R L O S PEREZ, et al., P la in tif f s , v. M A T T H E W CATE, et al., D e f e n d a n ts . CLASS ACTION S T IP U L A T I O N AND [PROPOSED] O R D E R TO PAY PLAINTIFFS I N T E R I M FEES AND TO STAY P L A IN T I F F S ' MOTION TO C O M P E L PAYMENT O F REASONABLE FEES FOR W O R K PERFORMED BY NONPARALEGALS DURING 2009 U N T I L THE RESOLUTION OF PEREZ V. CATE APPEAL NO. 0917185

S T I P U L A T I O N AND [PROPOSED] ORDER Perez v. Cate, C-05-5241 JSW

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S T IP U L A T IO N TO STAY PLAINTIFFS' MOTION TO COMPEL P A Y M E N T OF REASONABLE FEES FOR WORK PERFORMED BY N O N P A R A L E G A L LITIGATION ASSISTANTS DURING 2009 UNTIL T H E RESOLUTION OF PEREZ V. CATE APPEAL NO. 09-17185 Plaintiffs and Defendants STIPULATE as follows: 1. Pursuant to the Perez Periodic Fees Order, "Plaintiffs may file a yearly

m o tio n to compel payment of disputed items, if necessary, not later than sixty days after th e parties meet and confer with respect to the statement covering the fourth quarter of e a ch year." April 10, 2007 Stipulation and Order for Periodic Payment of Attorneys' Fees a n d Costs (attached as Appendix A). The sole fee issue remaining in dispute for 2009 is the ra te or rates defendants must pay plaintiffs for work performed by paralegals and by n o n p a ra leg a l litigation assistants 2. O n July 8, 2010, the parties agreed to stay Plaintiffs' motion to compel

re g a rd in g the rate to be paid paralegals pending final resolution of Perez, et al. v. Cate, et al., C o u rt of Appeals Docket No. 09-17185, United States Court of Appeals for the Ninth C irc u it, including any petitions for panel or en banc rehearing, or final resolution in the U n ite d States Supreme Court (hereinafter "Perez appeal"). Docket No. 525. The parties a g re e d , however, that plaintiffs would move to compel based on defendants' refusal to pay a n y fees for work performed by nonparalegal litigation assistants. Id. 3. P la in tif f s now withdraw their motion to compel payment for work performed

b y nonparalegal litigation assistants (Docket No. 526), as defendants agree to pay these fees, a t a reduced rate. The parties agree to stay Plaintiffs' motion regarding the final rate to be p a id nonparalegal litigation assistants pending final resolution of the Perez appeal, including a n y petitions for panel or en banc rehearing, or final resolution in the United States Supreme C o u rt . 4. In the interim, defendants agree to pay nonparalegal litigation assistant fees at

th e hourly rate of $82.50. For 2009, defendants will pay plaintiffs, within 30 days of the
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p a ss a g e of the California state budget for 2010/2011, $3902 for the 47.3 hours that d e f en d a n ts had previously refused to compensate. In so doing, Plaintiffs do not waive and w ill enforce their right to interest in accordance with the provisions set forth in the April 10, 2 0 0 7 Periodic Fees order. Nothing in this Stipulation may be deemed a waiver or concession o f any party's legal arguments regarding this issue. 5. If the Ninth Circuit rules in the Perez appeal that the Prison Litigation Reform

A c t governs paralegal fees, then the PLRA also governs nonparalegal litigation assistant fees. 6. If the requested stay is granted, the parties will meet and confer regarding

th e nonparalegal rate issue, as well as the paralegal rate issue, within 10 days after the m a n d a te issues in the Perez appeal. If the parties are still unable to resolve this issue, P la in tif f s will re-file a motion to compel within 60 days of the completion of the meet and co n fe r. I T IS SO STIPULATED. D a te: A u g u st 25, 2010 /s/ Alison Hardy P r is o n Law Office A tto rn e y for Plaintiffs /s/ Phillip Lindsay D e p u ty Attorney General A tto rn e y for Defendants

Date: August 25, 2010

I, Alison Hardy, attest that Phillip Lindsay signed this document on August 25, 2009. The hearing on September 10, 2010 at 9:00 a.m. on the motion to compel is VACATED, and the parties shall appear at 1:30 p.m. for the I T IS SO ORDERED. status conference. August 27, 2010 Dated: ____________________ JEFFREY S. WHITE United States District Court

S T I P U L A T I O N AND [PROPOSED] ORDER Perez v. Cate, C-05-5241 JSW

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APPENDIX A

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1 PRISON LAW OFFICE DONALD SPECTER 2 ALISON HARDY, State Bar No. 135966 General Delivery 3 San Quentin, CA 94964 Telephone: [phone] Facsimile: [phone] 5 Attorneys for Plaintiffs 6 EDMUND G. BROWN JR. 7 Attorney General of the State of California DAVID CHANEY 8 Chief Assistant Attorney General FRANCES T. GRUNDER 9 Senior Assistant Attorney General ROCHELLE C. EAST 1 0 Supervising Deputy Attorney General CHARLES J. ANTONEN, State Bar No. 221207 1 1 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 1 2 San Francisco, CA 94102-7004 Telephone: [phone] Facsimile: [phone] 1 4 Attorneys for Defendants 15 16 IN THE UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 19 20 21 22 23 24 25 26 27 28
S tip ula tion and Order re P e r iod ic Payment of Attorneys' Fees and Costs Perez v. Tilton, et al. 05-CV-05241 JSW

C A R L O S PEREZ, et al., P la in tif f s , v. J A M E S TILTON, et al., D e f e n d a n ts .

No. C05-5241 JSW STIPULATION AND [PROPOSED] ORDER RE PERIODIC PAYMENT OF ATTORNEYS' FEES AND COSTS

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1

1.

As permitted by Paragraph 42 of the Amended Stipulation and Order (Stipulation),

2 Plaintiff's counsel shall submit quarterly statements to Defendants' counsel for fees and costs 3 incurred in connection with Stipulation. In accordance with the Prison Litigation Reform Act 4 (PLRA), the statements will itemize the time spent, subject activity, applicable attorney and other 5 personnel billing rates, and costs with sufficient particularity to allow Defendants to identify 6 which efforts were or were not useful and necessary to ensure compliance with the Stipulation. 7 The billing rates for Plaintiffs' counsel shall be in accordance with 42 U.S.C. §1997e(d) of the 8 PLRA. The billing rates for personnel other than Plaintiffs' counsel shall be identified in the first 9 quarterly statement of each year. Unless Defendants dispute any of the fees or costs requested, the 1 0 billing statements submitted by Plaintiffs' counsel shall not include declarations or other 1 1 supporting pleadings. Plaintiffs' counsel shall serve the quarterly statements simultaneously on 1 2 the Attorney General's Office and the Legal Affairs Division of the California Department of 1 3 Corrections and Rehabilitation. 14 2. Upon receipt of Plaintiffs' quarterly statement, Defendants shall have thirty days to

1 5 request clarification and/or dispute item(s) on the statement. After notifying Plaintiffs' counsel of 1 6 such a request and/or dispute, Plaintiffs' and Defendants' counsel shall meet and confer within 1 7 thirty days. Following the meet and confer process, Plaintiffs' counsel shall prepare a stipulated 1 8 order for payment of fees not subject to Defendants' objections. Plaintiffs' counsel shall present 1 9 the signed stipulated payment order to the Court for entry. Defendants shall have thirty days from 2 0 the entry of the order by the Court to pay the undisputed fees without accruing interest. Interest 2 1 shall begin to accrue, at the rate provided by 28 U.S.C. § 1961, on any unpaid amounts on the 2 2 thirty-first day after the entry of the order by the Court. 23 3. If Defendants decline to agree to any stipulated payment order, or unreasonably fail

2 4 to timely process a fees request described in Paragraph 2, Plaintiffs' counsel may file with the 2 5 Court a proposed order for collection of fees that are not disputed, together with a certification of 2 6 counsel under penalty of perjury setting forth the relevant facts and circumstances. Defendants' 2 7 counsel may respond within five court days of filing the proposed order and certification. 2 8 Plaintiffs' counsel may reply within two court days after Defendants' response is filed. The
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1 parties request that the Court rule on Plaintiffs' application without conducting a hearing, unless 2 the Court considers such a hearing necessary. The parties agree that this expedited process shall 3 not be used in instances where Defendants have a reasonable basis for disputing fees and expenses 4 Plaintiffs have claimed to be undisputed. If any party determines that systematic problems in the 5 meet and confer process have arisen, that party may move for further modification of this process 6 and this stipulation, by a properly noticed motion made pursuant to the Federal Rules of Civil 7 Procedure and the Local Rules of this Court. 8 4. Plaintiffs may file a yearly motion to compel payment of disputed items, if

9 necessary, not later than sixty days after the parties meet and confer with respect to the statement 1 0 covering the fourth quarter of each year. Such motion shall be briefed and heard pursuant to the 1 1 Federal Rules of Civil Procedure and the Local Rules of this Court. To the extent Plaintiffs 1 2 prevail on their motion to compel payment of disputed items, Defendants shall have thirty days 1 3 from the entry of the order by the Court to pay the amount of the order without accruing interest. 1 4 Interest shall begin to accrue, at the rate provided by 28 U.S.C. § 1961, on any unpaid amounts on 1 5 the thirty-first day after the entry of the order by the Court. If Defendants oppose any billing rates 1 6 proposed by Plaintiffs' counsel, Plaintiffs shall bring a motion to compel on this issue following 1 7 the first quarterly statement of each year. 18 19 5. In the event that an unusually large number of hours or a significant issue is

in dispute, Plaintiffs may bring a quarterly motion to compel on those issues alone. Any such

2 0 quarterly motion to compel will be filed no later than thirty days after the parties have met and 2 1 //// 2 2 //// 2 3 //// 2 4 //// 2 5 //// 2 6 //// 2 7 //// 28
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1 conferred on the quarterly statement at issue. Such motions will be briefed and heard pursuant to 2 the Federal Rules of Civil Procedure and the Local Rules of this Court. 3 4 5 6 7 8 9 10 Date: April 10, 2007 11 12 13 14 15 IT IS SO ORDERED. 16 17 April 10, 2007 1 8 Dated: __________________ 19 20 21 22 23 24 25 26 27 28
S tip ula tion and Order re P e r iod ic Payment of Attorneys' Fees and Costs

IT IS SO STIPULATED.

Date: April 10, 2007

/s/ Alison Hardy Alison Hardy Prison Law Office Attorney for Plaintiffs

/s/ Charles J. Antonen Charles J. Antonen Deputy Attorney General Attorney for Defendants

I, Alison hardy, attest that Charles Antonen signed this document on April 10, 2007.

_________________________ JEFFREY S. WHITE United States District Court

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Perez v. Tilton, et al. 05-CV-05241 JSW