United States of America v. $608,916.58 in U.S. Currency

Filing 140

CORRECTED STIPULATION AND ORDER 139 Re: Scheduling. Signed by Judge D. Lowell Jensen on 9/18/12. (jg, COURT STAFF) (Filed on 9/18/2012)

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MELINDA HAAG (CSBN 132612)
United States Attorney

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MIRANDA KANE (CSBN 150630)
Chief, Criminal Division

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PATRICIA J. KENNEY (CSBN 130238)
Assistant United States Attorney

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450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: [phone]
Facsimile: 415.436.7234
Email: [e-mail]

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Attorneys for United States of America
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Plaintiff,
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v.
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THOMAS GROSSI, SR.,
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Defendant.
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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$608,916.58 IN U.S. CURRENCY, AS
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SUBSTITUTE RES, FOR REAL PROPERTY )
LOCATED AT 2638 MARKET STREET,
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OAKLAND, CALIFORNIA,
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Defendant.
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No. 04-CR-40127 DLJ
CORRECTED STIPULATION
AND ORDER RE: SCHEDULING

No. 04-CV-03055 DLJ
CORRECTED STIPULATION
AND ORDER RE: SCHEDULING

For reasons which follow, the parties propose the stipulation which follows to keep the hours

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to be expended in the litigation on the pending attorney fees motion at a minimum.

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On September 5, 2012, counsel for defendant Thomas Grossi, Sr., and claimant/petitioner

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Lauretta Weimer, filed a motion for attorney fees based on 28 U.S.C. § 2465(b)(1)(A). On

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September 5, 2012, the parties exchanged emails regarding the government’s position, inter alia, that

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there is no waiver of sovereign immunity under 28 U.S.C. § 2465(b)(1)(A) for fees in this case

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because the express language of Section 2465(b)(1)(A) provides in pertinent part that the

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government can only be held liable for a “reasonable attorney fees” in “any civil proceeding to forfeit

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property” in which a “claimant substantially prevails.” 28 U.S.C. § 2465(b)(1)A). Key cases on

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which the government told counsel it relies include : United States v. Moser, 586 F.3d 1089 (8th Cir.

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2010) (en banc); United States v. Certain Real Property . . . 317 Nick Fitchard Road, 579 F.3d 1315

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(11 Cir. 2009); see also United States v. Kahn, 497 F.3d 204, 208-09 and n. 6 (2d Cir. 2007).

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The United States has also proposed that the parties first litigate the jurisdictional issue. If

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the Court agrees it lacks jurisdiction, the attorney fees matter ends and the case is closed, except for

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any appeal. If the Court rules that it has jurisdiction, then the United States asserts that it needs

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discovery in order to address the specifics. Claimants do not agree that the government is entitled

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to discovery, but the parties agree that fee awards have to be based on the “lodestar” which is the

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reasonable hourly rate times the number of hours reasonably expended to substantially prevail. The

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government questions whether claimant has properly supported the hourly rates claimed and whether

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the number of the hours is reasonable. To oppose the fee motion, the government believes it needs

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discovery to address: whether counsel only seeks hours spent on the civil case and has excluded time

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spent on the criminal case; whether the time claimed was on issues on which claimant prevailed;

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whether claimant’s counsel exercised “billing judgment”; whether the hours claimed are properly

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compensable as hours of an attorney in this type of litigation (e.g., driving 1.5 hours to pick up

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documents); whether claimant’s counsel has provided otherwise adequate time/date/task information

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on which to base an award; whether the rates claimed are “reasonable hourly rates.”

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Corrected Stip & Order Re: Sched.
CR 04-40127 DLJ
CV 04-3055 DLJ

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The United States is sensitive that motions for fees should not take on a life of their own, but

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at the same time it has legitimate jurisdictional concerns and legitimate concerns about whether the

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record claimant’s counsel has created supports the fee award claimed. In addition, the undersigned

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is recovering from pneumonia and needs additional time to file its motion to dismiss the fee motion

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for lack of jurisdiction. Unless time is extended, the United States must file on or before September

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19, 2012.

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Considering the foregoing, the United States contacted counsel for claimant and sought his

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agreement to the schedule which is below. Albeit counsel for claimant does not agree that the Court

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lacks jurisdiction or that its fee motion is deficient, counsel for claimant, David M. Michael, agrees,

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subject to the Court’s approval, to the following schedule:
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attorneys’ fee motion for lack of jurisdiction;
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On or before October 3, 2012, the United States shall file its motion to dismiss the

On or before October 17, 2012, counsel for claimant will file its opposition to the

motion;

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3.

On or before October 24, 2012, the United States will file its reply;

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4.

On November , 2012 at 9:00 a.m. in San Jose Courtroom 7, 4th Floor at 280 South

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First Street, San Jose, CA, the Court will hold a hearing on the fee motion;
5.

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On or before October 3, 2012, the United States shall also file a motion to take limited

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discovery from counsel for claimant who seek fees and a copies of the specific discovery that the

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United States requests;
6.

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If the Court rules against the United States on the jurisdictional issue, the parties shall

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hold an in person meet-and-confer within 20 days to see whether they can informally resolve the fee

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Corrected Stip & Order Re: Sched.
CR 04-40127 DLJ
CV 04-3055 DLJ

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motion. If the fee motion cannot be resolved, then counsel for the United States will notice the

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motion for discovery on the 5-week schedule. Civ. L. R. 7-2; Fed. R. Crim. P. 32.2(c)(1).
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IT IS SO STIPULATED:

MELINDA HAAG
United States Attorney

Dated: September 17, 2012

/s/
PATRICIA J. KENNEY
Assistant United States Attorney
Attorneys for the United States of America

Dated: September 17, 2012

/s/1
DAVID MICHAEL
EDWARD M. BURCH
LAW OFFICES OF DAVID M. MICHAEL
Counsel for Defendant Thomas Grossi, Sr.,
and Claimant/Petitioner Lauretta Weimer

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BASED ON THE FOREGOING STIPULATION, IT IS SO ORDERED:

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HONORABLE D. LOWELL JENSEN
United States District Judge

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Mr. Michael, who is out-of-the country, worked on this stipulation with AUSA Kenney
and authorized her by email to use “/s/” in lieu of his original signature. AUSA Kenney received the
authorization, but inadvertently failed to affix the “/s/” for each attorney when the original stipulation
and proposed order was filed in the late evening on September 17, 2012. Hence, this “corrected”
stipulation and order re: scheduling is being filed today, September 18, 2012.

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Corrected Stip & Order Re: Sched.
CR 04-40127 DLJ
CV 04-3055 DLJ

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