Ally Bank et al v. Wells Fargo Bank, N.A.

Filing 965

Discovery Order Requesting Further Briefing. Signed by Judge Maria-Elena James on 10/18/2016. (mejlc3, COURT STAFF) (Filed on 10/18/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALLY BANK, et al.,

Case No. 11-cv-00896-YGR (MEJ)

Plaintiffs,
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ORDER REQUESTING FURTHER
BRIEFING

v.
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LARA KARAKASEVIC, et al.,

Dkt. No. 951

Defendants.

United States District Court
Northern District of California

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Plaintiffs originally filed their Motion for Attorneys’ fees on April 26, 2016. See Original

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Mot., Dkt. No. 916. The undersigned issued a Report and Recommendation (“R&R”) on that

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Motion recommending the presiding judge deny it without prejudice on several grounds. See First

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R&R, Dkt. No. 937. First, Plaintiffs had failed to explain whether they had exercised billing

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judgment and whether they eliminated excessive, duplicative, and unnecessary hours from the fee

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request. Id. at 1-2. Second, Plaintiffs had not demonstrated their rates were in line with the

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prevailing market rates of the relevant community. Id. at 2. Third, Plaintiffs made no effort to

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explain how the “tort of another” doctrine applied to this case, such that all defendants were liable

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for all fees incurred. Id. The presiding judge adopted the First R&R and ordered Plaintiffs to

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submit supplemental briefing and evidence curing the defects identified in that R&R. Order

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Adopting First R&R, Dkt. No. 939.

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Plaintiffs submitted supplemental briefing in response. Mot., Dkt. No. 951; MPA, Dkt.

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No. 952. Having reviewed Plaintiffs’ responses, the undersigned now requests additional

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information on the following issues:

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(1)

The billing statements attached to Stephen Seto’s Declaration list numerous entries

for time billed by “DHM” and “DVS.” See Seto Decl., Ex. E, Dkt. No. 955-1. Seto does not

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identify these timekeepers in his Declaration, and the undersigned therefore cannot determine

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whether their hourly rates of $160 and $295 are reasonable.

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(2)

Plaintiff has summarized the hours billed per category of Defendant. See Seto

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Decl., Ex. D. In addition, for each timekeeper for whom Plaintiffs are seeking to recover fees,

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please summarize the total hours billed over the course of the action.

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(3)

Plaintiffs seek to recover either $25,419.21 or $22,100.26 in costs. Compare MPA

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at 11, with Seto Decl. ¶ 11. To support their request, they submitted approximately 350 pages of

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bills, highlighting the expenses they contend are recoverable. See Seto Decl., Ex. F. Please

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summarize the costs requested, identify which category allowable by Civil Local Rule 54-3 and/or
28 U.S.C. § 1920 each cost may be recovered under, confirm that each item requested conforms

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United States District Court
Northern District of California

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with the requirements of the Local Rule and/or Section 1920, and clarify the total amount of costs

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Plaintiffs are seeking to recover. “[I]t is not the Court’s job to scour the record to justify

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Plaintiffs’ request.” First R&R at 1.

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(4)

Do Plaintiffs still seek attorneys’ fees from the Individual Homeowner Defendants?

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The presiding judge entered default judgment against Defendant Guillotte, the Young Defendants,

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and the Eweis Defendants, but only on Plaintiffs’ fraud, conspiracy to defraud, and negligence

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claims. See Dkt. Nos. 704 (R&R re: Guillotte); 730 (Order Adopting Guillotte R&R); 769 (R&R

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re: Young Defs.); 785 (R&R re: Eweis Defs.); 909 (Order Adopting R&Rs re: Young and Eweis

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Defs.). Plaintiffs thus cannot recover attorneys’ fees from these Defendants pursuant to the

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mandatory provisions of 18 U.S.C. § 1964(c) (prevailing plaintiff in civil action brought under

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Racketeer Influenced and Corrupt Organizations (“RICO”) Act “shall” recover reasonable

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attorneys’ fees). Moreover, Plaintiffs appear to have abandoned their “tort of another” theory, but

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have not identified a legal basis for recovering fees from these Defendants. If Plaintiffs still steek

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to recover attorneys’ fees from these Defendants, what is Plaintiffs’ legal basis for doing so?

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(5)

Similarly, Plaintiffs argue Defendants Karakasevic, Di Chiara, Smith, Shon-Te-

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East-A, and Walks With Spirit are “main perpetrators” of the fraud. Although the presiding judge

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did not enter default judgment against these Defendants on Plaintiffs’ RICO claims, Plaintiffs

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argue these Defendants should be liable jointly and severally for $651,403 in attorneys’ fees
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Plaintiffs incurred in prosecuting the main action. See MPA at 8-9 (“It is appropriate for the Court

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to award the fees and costs jointly against all the main perpetrator and sham entity defendants

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since their initial scheme was the lynch-pin to all the additional litigation required in this matter.”),

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see also id. at 3-4 (defining Main Perpetrators and Sham Entities). On what legal basis do

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Plaintiffs seek to recover attorneys’ fees from these Defendants? The Court is in no better position

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to “determine . . . whether all individual Defendants should be held liable for the full amount of

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any award the District Court grants” (First R&R at 3) than it was when it recommended the

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presiding judge deny the Motion without prejudice.

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Plaintiffs shall file a response to the foregoing questions by November 1, 2016.
IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: October 18, 2016
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MARIA-ELENA JAMES
United States Magistrate Judge

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