United States of America v. Fuess

Filing 28

ORDER Awarding Costs and Attorney's Fees. Plaintiff is awarded $651.03 in costs and $1832.27 in attorneys fees, totaling $2,483.30. Defendant shall pay this amount to the United States within thirty days of the filing of this order. Signed by Magistrate Judge Ruben B. Brooks on 9/13/2016.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

Case No.: 15cv1148-BEN (RBB)

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ORDER AWARDING COSTS AND
ATTORNEY’S FEES [ECF NOS. 15,
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Plaintiff,
v.
WILLIAM C. FUESS,
Defendant.

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On July 12, 2016, Plaintiff the United States filed a “Declaration of Nithya Senra

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Regarding Costs of Bringing the United States’ Motion for Sanctions” (the
“Declaration”) with a declaration of Mahana K. Weilder and an exhibit [ECF No. 21].
No response to the Declaration was filed. For the reasons discussed below, sanctions are
assessed against Fuess in the amount of $2,483.30.
I. BACKGROUND

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The United States commenced this litigation against Defendant William C. Fuess
on May 21, 2015. (Compl. 6, ECF No. 1).1 Plaintiff initiated this action “to reduce

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The Court will cite to documents as paginated on the electronic case filing system.
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15cv1148-BEN (RBB)

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federal income tax, penalty, and interest assessments, along with other accruals that have

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not yet been formally assessed, against Defendant William C. Fuess to judgment.” (Id. at

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2.) The United States contends that Fuess failed to pay $286,574.24 in taxes from the

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years 2001, 2002, 2003, 2004, 2005, 2006, 2008, 2009, 2011, and 2012. (Id. at 3-5.)

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Plaintiff asks for a judgment in this amount, and it additionally seeks “accrued but

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unassessed interest and other statutory additions, along with statutory interest and other

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additions accruing after April 30, 2015, less any applicable credits and payments,” as

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well as its costs. (Id. at 6.)

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On May 25, 2016, the United States filed a Motion for Discovery Sanctions [ECF

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No. 15]. There, among other requests, Plaintiff sought an order “awarding the United

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[States] reasonable expenses, including attorney’s fees, for bringing this motion for

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discovery sanctions.” (Mot. Disc. Sanctions 2, ECF No. 15.) After a hearing on the

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motion, the Court issued an order granting Plaintiff’s request for sanctions under Rule

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37(d)(3). (Mins. 1, July 5, 2016, ECF No. 20.) The Court set a deadline of July 15,

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2016, for the United States to “file a declaration regarding its expenses and attorney’s

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fees incurred in bringing those portions of the Motion for Discovery Sanctions that relate

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to Defendant’s failure to respond to its interrogatories and requests for production.” (Id.)

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Fuess was given the deadline of July 22, 2016, to respond to Plaintiff’s declaration. (Id.)

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The United States filed the Declaration on July 12, 2016 [ECF No. 21], but Defendant did

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not file a response.

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II. LEGAL STANDARD
Under Rule 37(d)(3), where a party fails to respond to interrogatories or requests

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for production, “the court must require the party failing to act, the attorney advising that

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party, or both to pay the reasonable expenses, including attorney’s fees, caused by the

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failure . . . .” Fed. R. Civ. P. 37(d)(3). “By the very nature of its language, sanctions

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imposed under Rule 37 must be left to the sound discretion of the trial judge.” O’Connell

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v. Fernandez–Pol, 542 F. App’x 546, 547-48 (9th Cir. 2013) (unpublished memorandum

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disposition) (citing Craig v. Far West Eng’g Co., 265 F.2d 251, 260 (9th Cir. 1959)).
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“Overall, sanctions imposed under Rule 37 should deter the Defendant’s conduct, and

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remedy any prejudice it caused the Plaintiff.” S. Cal. Stroke Rehab. Assocs. v. Nautilus,

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Civil No. 09–CV–744 JLS (AJB), 2010 WL 2998839, at *2 (S.D. Cal. July 29, 2010)

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(citing Pioneer Drive, LLC. v. Nissan Diesel America, Inc., 262 F.R.D. 552, 560 (D.

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Mont. 2009)).

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III. DISCUSSION

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In her Declaration, Nithya Senra, counsel for the United States, indicates that the

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total cost of bringing those portions of the Motion for Discovery Sanctions that relate to

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Fuess’s failure to respond to the interrogatories and requests for production is $2,483.30.

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(Decl. Senra Regarding Costs 5, ECF No. 21.) This number is the total of $651.03 in

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costs, and nine and a half hours of attorney’s fees, billable at $192.87 per hour. (Id.) The

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Court addresses these expenses separately.

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A.

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Costs
Only Senra’s co-counsel, Mahana K. Weidler, claims costs arising from bringing

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those portions of the Motion for Discovery Sanctions that relate to the failure of

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Defendant to respond to the interrogatories and requests for production. Weidler

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indicates that the $651.03 in costs is the sum of (1) airfare from Washington, D.C. to San

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Diego, California, totaling $205.10; (2) one half of her airfare from Denver, Colorado to

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Washington, D.C. following unrelated business on her return trip, totaling $103.55; (3) a

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taxicab from her residence to Reagan National Airport, totaling $36.38; and (4) $306.00

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for a hotel in San Diego for two nights. (Id. Attach. #1 Decl. Weidler 4.) Attached to her

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declaration are receipts for these expenses. (Id. Ex. 1, at 7-12.) These receipts reflect the

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amounts claimed by the United States. Moreover, the costs represent reasonable

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expenses incurred in bringing those portions of the Motion for Discovery Sanctions

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relating to Fuess’s failure to respond to the interrogatories and requests for production.

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Plaintiff is awarded $651.03 in costs.

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//

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//
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B.

Attorney’s Fees
Senra and Weidler collectively spent nine and a half hours preparing those portions

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of the Motion for Discovery Sanctions that relate to Defendant’s failure to respond to the

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interrogatories and requests for production. (Decl. Senra Regarding Costs 5.) Senra

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attributes four hours of her time to drafting the Motion for Discovery Sanctions and two

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hours to her efforts to meet-and-confer with Fuess regarding his failure to respond to this

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discovery, totaling six hours. (Id. at 2-3.) Weidler indicates that three and a half hours of

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her time spent preparing for and appearing at the hearing on the Motion for Discovery

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Sanctions are attributable to Fuess’s failure to respond to the interrogatories and requests

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for production. (Id. Attach. #1 Decl. Weidler 2.) According to the United States, the

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Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, set the hourly rate at $125 as of

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March 29, 1996, and the inflation-adjusted rate is $192.87. (Id. at 3-4.)

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“EAJA provides that . . . attorney fees shall not be awarded in excess of $125 per

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hour unless the court determines that an increase in the cost of living or a special factor . .

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. justifies a higher fee.” Nadarajah v. Holder, 569 F.3d 906, 911 (9th Cir. 2009) (citing

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28 U.S.C. § 2412(d)(2)(A)). “District courts have been determining the cost-of-living

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adjustment by multiplying the basic EAJA rate by the current consumer price index for

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urban consumers (CPI–U), and then dividing the product by the CPI–U in the month that

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the cap was imposed . . . .” Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001)

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(citing Ramon–Sepulveda v. INS, 863 F.2d 1458, 1463 (9th Cir. 1988)). Courts are to

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use the consumer price index for urban consumers at the time the work was conducted.

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See id. (“Enhancing the EAJA’s base rate by the CPI–U that is current in the year when

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the fee is earned compensates for increases in the cost of living between the time that the

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EAJA was enacted and the time that the fee was earned.”).

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Senra asserts that the consumer price index for urban consumers was 240.236 in

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May of 2016, when the work on the Motion for Discovery Sanctions was conducted.

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(Decl. Senra Regarding Costs 5, ECF No. 21.) She further indicates that the consumer

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price index for urban consumers in March of 1996 was 155.7. (Id.) After reviewing the
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relevant data from the Bureau of Labor Statistics, the Court finds that these numbers are

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accurate. See CPI Detailed Report: Data for May 2016, Bureau of Labor Statistics 4, 70

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(Malik Crawford, Jonathan Church & Bradley Akin eds., 2016),

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http://www.bls.gov/cpi/#tables (select “CPI Detailed Report (complete text and tables)

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May 2016”). Further, Senra’s calculation of the enhanced EAJA base rate as $192.87 is

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accurate and consistent with the Ninth Circuit’s ruling in Sorenson. The rate for nine and

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a half hours of attorney time totals $1832.27, which is the amount that Plaintiff seeks in

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attorney’s fees. The Court finds that this is a reasonable award of attorney’s fees for the

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amount of time spent on those portions of the Motion for Discovery Sanctions relating to

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Defendant’s failure to respond to the interrogatories and requests for production. See

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Fed. R. Civ. P. 37(d)(3). As a result, the United States is awarded $1832.27 in attorney’s

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fees.

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IV. CONCLUSION

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In sum, Plaintiff is awarded $651.03 in costs and $1832.27 in attorney’s fees,

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totaling $2,483.30. Defendant shall pay this amount to the United States within thirty

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days of the filing of this order.

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IT IS SO ORDERED.

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DATED: September 13, 2016

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___________________________________
Hon. Ruben B. Brooks
United States Magistrate Judge

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cc:

Judge Benitez
All Parties of Record

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15cv1148-BEN (RBB)