Brinker v. Normandin's

Filing 103

Order enforcing prior discovery order; interim order on 86 motion for sanctions. The hearing on 86 the motion is vacated. Signed by Magistrate Judge Howard R. Lloyd on 5/4/16. (hrllc1S, COURT STAFF) (Filed on 5/4/2016)

E-Filed 5/4/16

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALAN BRINKER,
Plaintiff,

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v.
NORMANDIN'S, et al.,
Defendants.

United States District Court
Northern District of California

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Case No. 14-cv-03007-EJD (HRL)
ORDER ENFORCING PRIOR
DISCOVERY ORDER
INTERIM ORDER ON MOTION FOR
SANCTIONS
Re: Dkt. No. 86

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On January 22, 2016, the court resolved Discovery Dispute Joint Report 1 (“DDJR 1”) by

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ordering Defendant Normandin’s to produce certain documents by February 20, 2016. Dkt. No.

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73. Plaintiff Alan Brinker (“Brinker”) asserts that Normandin’s failed to produce the documents it

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was ordered to produce; Brinker therefore filed a motion for enforcement of the discovery order

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and for sanctions. Dkt. No. 86. Brinker asks that the court order the production of “the overdue

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documents” within 10 days of the court issuing an enforcement order. Dkt. No. 86 at 5. Brinker

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also requests that Normandin’s be ordered to pay, as sanctions, $20,725 worth of Brinker’s

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attorney fees.

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Normandin’s has filed no response to the motion and the deadline for filing a response has

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expired. The lack of opposition persuades the undersigned that Normandin’s has violated the

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court’s order on DDJR 1. Accordingly, the undersigned is persuaded that Normandin’s should be

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ordered to produce the documents at issue in DDJR 1, to do so in the manner previously ordered

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by the court when it resolved DDJR 1, and to complete the production of those documents within

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ten days. See Dkt. No. 73 at 5.

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The court sees several deficiencies, however, with Brinker’s attorney-fees request. Brinker

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has the burden to show its requested hourly fee rates are “in line with the prevailing market rate”

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in this district. See Carson v. Billings Police Department, 470 F.3d 889, 891 (9th Cir. 2006)

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(citation omitted). The declaration of A. Janay Ferguson (“Ferguson”) supports the requested fee

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rates merely by stating that Brinker’s lawyers have used “a variety of factors” to set reasonable

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rates—this provides no details that might permit the court to review whether Brinker’s hourly fee

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rates are in line with the prevailing market rate in this district. See Dkt. No. 87 at 3. The

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undersigned also advises Brinker that ordinarily a litigant must prove the “market rate” with other

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evidence “in addition to” the declaration of an attorney whose own fee rate is at issue. See Blum v.

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Stenson, 465 U.S. 886, 896 n.11 (1984).
Similarly, Ferguson does not describe who did what, and when, with sufficient specificity.

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Attorney fees should be awarded only for time “reasonably expended on the” case. Camacho v.

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Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citation omitted). Ferguson’s

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United States District Court
Northern District of California

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declaration summarizes, for each attorney, the set of tasks for which compensation is requested

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and the number of hours billed, altogether, for the completion of those tasks. Dkt. No. 87 at 4.

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This summary does not permit the court to review whether a reasonable amount of time was

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devoted to any particular task.

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worked on any given task, the court has no meaningful opportunity to review which particular fees

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might be compensable due to being “caused” by a preceding violation of the order on DDJR 1.

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See Fed. R. Civ. P. 37(b)(2)(C). The undersigned also notes, as a final concern, that the stated

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number of hours billed for the work of Adrienne D. McEntee (“McEntee”) is too low to account

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for the $8,872.50 billed for McEntee’s work, Dkt. No. 87 at 4; it seems likely that Ferguson

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intended to report whatever number of billed hours would justify McEntee’s total fees, but the

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undersigned will not act based on a calculation of what Ferguson probably intended to report.

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Likewise, absent information about when Brinker’s lawyers

Conclusion
The court vacates the hearing on Brinker’s motion. The undersigned is persuaded, due to

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the lack of opposition, that Normandin’s violated the court’s order on DDJR 1.

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therefore orders Normandin’s to produce the documents that it was previously ordered to produce

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and to do so in the manner previously ordered.

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Normandin’s to comply with this order no later than May 14, 2016.

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Dkt. No. 73 at 5.

The court

The court also orders

The undersigned, as discussed above, sees several deficiencies in Brinker’s request for
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sanctions. The court therefore defers its ruling on that portion of the motion and orders Brinker to

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file, no later than May 13, 2016, a statement responsive to the court’s concerns. The statement

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shall be supported as necessary by additional declarations. Brinker shall also submit the billing

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records summarized in Ferguson’s declaration. The court, if appropriate, shall set a new hearing

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on the motion after Brinker submits its statement in response to this order.

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IT IS SO ORDERED.
Dated: 5/4/16

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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