Johannson v. Wachovia Mortgage

Filing 71

ORDER DENYING DEFENDANT'S MOTION FOR ATTORNEY'S FEES by Hon. William Alsup denying 65 Motion for Attorney Fees.(whalc2, COURT STAFF) (Filed on 7/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WENDY JOHANNSON,

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For the Northern District of California

United States District Court

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No. C 11-02822 WHA

Plaintiff,
v.
WACHOVIA MORTGAGE, FSB, formerly
known as World Savings Bank FSB, DEREK
WAYNE PHILIPS, doing business as DKP
MORTGAGE, and JOSEPH STEVEN CANTER,

ORDER DENYING
DEFENDANT’S MOTION
FOR ATTORNEY’S FEES

Defendants.
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In this mortgage-loan dispute, defendant Wachovia Mortgage moves for an award of

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attorney’s fees of $75,188.50. Plaintiff Wendy Johannson, a retired school teacher, brought this

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action, alleging that defendant Wachovia was aware of and directly engaged in

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misrepresentations made to her by other defendants, prior to execution of the subject loan,

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regarding the terms of the loan, and that defendant Wachovia directly benefitted therefrom. By

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order dated May 4, 2012, defendant Wachovia’s motion for summary judgment was granted.

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Judgment was entered on May 14. Defendant filed its motion for attorney’s fees on May 29,

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which was timely, due to the Memorial Day holiday on May 28.

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An order to show cause issued because plaintiff failed to timely oppose the motion for

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attorney’s fees. In response, plaintiff’s counsel, a solo practitioner, filed an opposition brief and

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response to the order to show cause explaining that his delay in filing an opposition was due to

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illness and mis-calendaring the date for the opposition brief. Plaintiff’s counsel’s illness is

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reason to excuse the late filing of the opposition brief.

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Pursuant to Civil Local Rule 54-5(a), “[c]ounsel for the respective parties must meet and

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confer for the purpose of resolving all disputed issues relating to attorney’s fees before making a

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motion for award of attorney’s fees.” According to Civil Local Rule 1-5 (m):

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For the Northern District of California

United States District Court

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Meet and confer . . . means to communicate directly and discuss in
good faith the issue(s) required under the particular Rule or order.
Unless these Local Rules otherwise provide or a Judge otherwise
orders, such communication may take place by telephone. The
mere sending of a written, electronic, or voice-mail
communication, however, does not satisfy a requirement to ‘meet
and confer’ . . . . Rather, this requirement can be satisfied only
through direct dialogue and discussion — either in a face to face
meeting or in a telephone conversation.
Defendant’s notice of motion states, “[p]ursuant to Local Rule 54-5, defendant’s counsel

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called and e-mailed plaintiff’s counsel to meet and confer on May 29, 2012, but was unable to

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get a response prior to filing this motion” (Dkt. No. 65 at 2). As stated in our local rules, “[t]he

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mere sending of a written, electronic, or voice-mail communication” is insufficient. What is

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more, defense counsel’s putative attempt to meet and confer occurred the day the motion for

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attorney’s fees was due. The local rules require a “good faith effort” to meet and confer.

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Local Rule 54-5(b) also requires a declaration or affidavit to be filed with the motion for

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attorney’s fees stating that “counsel have met and conferred for the purpose of attempting to

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resolve any disputes with respect to the motion or a statement that no conference was held, with

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certification that the applying attorney made a good faith effort to arrange such a conference,

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setting forth the reason the conference was not held.” No such declaration was filed. Instead,

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the only mention of defense counsel’s putative attempt to meet and confer was in the notice of

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motion. The notice cites to Local Rule 54-5, showing counsel was aware of the rule’s

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requirements, yet did not comply.

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Defendant failed to comply with the local rules governing the filing of a motion for
attorney’s fees. Thus, the motion is DENIED.

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IT IS SO ORDERED.

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Dated: July 9, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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