Glass Egg Digital Media v. Gameloft, Inc. et al

Filing 222

Order by Magistrate Judge Robert M. Illman denying 212 Motion for Sanctions. (rmilc2, COURT STAFF) (Filed on 11/13/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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GLASS EGG DIGITAL MEDIA,
Plaintiff,

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ORDER

v.

Re: Dkt. No. 212

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United States District Court
Northern District of California

Case No. 17-cv-04165-MMC (RMI)

GAMELOFT, INC., et al.,

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Defendants.

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Currently pending before the court is Defendant Gameloft SE’s (“GLSE”) Motion for

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Sanctions (dkt. 212). Plaintiff has responded (dkt. 216) and GLSE has replied (dkt. 219). Pursuant

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to Local Civil Rule 7-1(b), the court finds that this matter is suitable for disposition without oral

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argument; accordingly, the hearing set for November 15, 2019, is VACATED.

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GLSE seeks an order “[d]irecting Plaintiff to pay GLSE’s reasonable expenses in the

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amount of $69,839.62 to oppose Plaintiff’s motion to compel discovery responses from GLSE;

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and [i]mposing sanctions against Plaintiff or Plaintiff’s counsel for GLSE’s attorney’s fees in the

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amount of $127,033.75 to defend against Plaintiff’s third party [s]ubpoenas; and [d]irecting

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Plaintiff to pay GLSE’s attorney’s fees incurred to bring this Motion” in the amount of

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$19,216.25. Def.’s Mot. (dkt. 212 at 2, 11). Filed contemporaneously with GLSE’s motion is a

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single-page Declaration which merely sets forth that three lump sums were expended in attorney’s

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fees in connection with the motion practice described above. See Def.’s Decl. (dkt. 212-1) at 2.

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Thereafter, GLSE filed a second Declaration along with its Reply Brief (dkt. 219), and while it

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contains more substance than the first, the second Declaration likewise only presents the same

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lump sum amounts while also failing to state the hourly rate claimed or providing any substantial

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justification or itemization for the claimed lump sum amounts. See Def.’s Second Decl. (dkt. 219-

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1) at 2-4.

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Local Civil Rule 37-4(b)(3), which governs motions for sanctions in this court, requires the
accompanying declaration to “itemize with particularity the otherwise unnecessary expenses,

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including attorney fees, directly caused by the alleged violation or breach, and set forth an

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appropriate justification for any attorney-fee hourly rate claimed.” Furthermore, it should be noted

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that when a sanction is appropriate, the amount awarded must be reasonable. See Matter of

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Yagman, 796 F.2d 1165, 1184 (9th Cir. 1986). “This is particularly so where, as here, the amount

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of the sanction is based upon the attorney’s fees claimed by the other party.” Id. Issuing a lump-

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sum sanctions award based on different sources of authority, as is the case here, and covering a

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United States District Court
Northern District of California

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host of alleged misconduct over a period of time is discouraged. See id. Instead, a sanctions award

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must be “quantifiable with some precision and properly itemized in terms of the perceived

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misconduct and the sanctioning authority.” Id.

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“When the sanctions award is based upon attorney’s fees and related expenses, an essential

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part of determining the reasonableness of the award is inquiring into the reasonableness of the

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claimed fees.” Id. at 1184-85. This court, therefore, is tasked with “make[ing] some evaluation of

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the fee breakdown submitted by counsel” to determine not the actual fees and expenses incurred,

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but what amount of fees and expenses are reasonable under the circumstances. Id. at 1185.

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Additionally, the court will also consider the would-be sanctioned party’s ability to pay in

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determining the reasonableness of any sum that is to be awarded. Id. However, “the sanctioned

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party has the burden to produce evidence of inability to pay.” Gaskell v. Weir, 10 F.3d 626, 629

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(9th Cir. 1993). Failure to present such evidence or raise the issue waives any argument regarding

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inability to pay. See Fed. Election Comm’n. v. Toledano, 317 F.3d 939, 949 (9th Cir. 2002).

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Because GLSE’s Motion fails to set forth a particularized itemization of the allegedly unnecessary

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expenses it has incurred, or a statement of the hourly rate(s) claimed, or an appropriate

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justification for such rate(s), the Motion is both non-compliant with Local Rule 37-4(b)(3), and the

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Motion is such that this court is unable to determine whether the lump sums claimed are

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reasonable under the circumstances.
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Accordingly, GLSE’s Motion for Sanctions (dkt. 212) is DENIED without prejudice to

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refiling. If GLSE elects to refile its motion, it must be accompanied with a compliant declaration

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that sets forth any hourly rates for attorneys and support staff, as well as an appropriate

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justification for those rates, and most importantly, the declaration must contain a particularized

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itemization of hours spent on each and every task which GLSE identifies and contends was

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unnecessary but for Plaintiff’s allegedly unwarranted conduct.

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IT IS SO ORDERED.
Dated: November 13, 2019

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ROBERT M. ILLMAN
United States Magistrate Judge

United States District Court
Northern District of California

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