United States of America v. Fuess

Filing 30

ORDER Awarding Costs and Attorney's Fees. Signed by Magistrate Judge Ruben B. Brooks on 10/18/2016.(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. 23,
27]

Plaintiff,
v.
WILLIAM C. FUESS,
Defendant.

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On September 21, 2016, Plaintiff the United States filed a “Declaration of Nithya

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Senra Regarding Costs of Bringing the United States’ Motion for Sanctions” (the
“Declaration”) with an exhibit [ECF No. 29]. No response to the Declaration was filed.
For the reasons discussed below, sanctions are assessed against Fuess in the amount of
$1,909.46.
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]. After a hearing, the Court issued an order granting in part and denying in part

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this motion. (Mins. 1, July 5, 2016, ECF No. 20.) The Court set a deadline of July 26,

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2016, for Plaintiff to file a motion to compel or a motion for sanctions in connection with

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Defendant’s responses to interrogatories and requests for production. (Id.) On July 26,

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2016, the United States filed a Motion to Compel Discovery and Motion for Discovery

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Sanctions [ECF No. 23]. There, among other requests, Plaintiff asked for its “reasonable

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expenses, including attorney’s fees, associated with bringing this motion to compel

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discovery and motion for discovery sanctions.” (Mot. Compel Disc. & Mot. Disc.

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Sanctions Attach. #1 Mem. P. & A. 10, ECF No. 23.) Following a hearing, the Court

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issued an order granting the United States’ request for sanctions under Rule 37. (Mins. 1,

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Sept. 7, 2016, ECF No. 27.) The Court set a deadline of September 21, 2016, for

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Plaintiff’s counsel “to submit her declaration regarding expenses and attorney’s fees.”

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(Id.) Fuess was given the deadline of October 5, 2016, to respond to Plaintiff’s

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declaration. (Id.) The United States filed the Declaration on September 21, 2016 [ECF

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No. 29], but Defendant did not file a response.

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II. LEGAL STANDARD
“By the very nature of its language, sanctions imposed under Rule 37 must be left

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to the sound discretion of the trial judge.” O’Connell v. Fernandez–Pol, 542 F. App’x

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546, 547-48 (9th Cir. 2013) (unpublished memorandum disposition) (citing Craig v. Far
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15cv1148-BEN (RBB)

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West Eng’g Co., 265 F.2d 251, 260 (9th Cir. 1959)). “Overall, sanctions imposed under

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Rule 37 should deter the Defendant’s conduct, and remedy any prejudice it caused the

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Plaintiff.” S. Cal. Stroke Rehab. Assocs. v. Nautilus, Civil No. 09–CV–744 JLS (AJB),

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2010 WL 2998839, at *2 (S.D. Cal. July 29, 2010) (citing Pioneer Drive, LLC. v. Nissan

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Diesel America, Inc., 262 F.R.D. 552, 560 (D. 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 the Motion to Compel Discovery and Motion for Discovery

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Sanctions is $1,909.46. (Decl. Senra Regarding Costs 4, ECF No. 29.) This number is

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the total of $653.66 in costs, and six and a half hours of attorney’s fees, billable at

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$193.20 per hour. (Id.) The Court addresses these expenses separately.

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A.

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Costs
Senra indicates that the $653.66 in costs is the sum of “airfare, hotel, taxi, meals

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and incidental per diem reimbursement” associated with her travel to the hearing on the

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Motion to Compel Discovery and Motion for Discovery Sanctions. (Id.) Attached to her

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Declaration is a travel voucher summary of expenses paid by the United States in

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connection with her travel. (Id. Attach. #1 Ex. A, at 2-4.) This voucher summary reflects

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the amount claimed by Plaintiff. Moreover, the costs represent reasonable expenses

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incurred in bringing the Motion to Compel Discovery and Motion for Discovery

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Sanctions. The United States is awarded $653.66 in costs.

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B.

Attorney’s Fees

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Senra spent six and a half hours bringing the Motion to Compel Discovery and

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Motion for Discovery Sanctions. (Decl. Senra Regarding Costs 4, ECF No. 29.) She

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attributes five hours of her time to drafting the motion, half an hour to attempting to meet

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and confer with Fuess, and one hour to preparing for and attending the hearing on the

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motion. (Id. at 2-3.) According to Plaintiff, the Equal Access to Justice Act (“EAJA”),

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28 U.S.C. § 2412, set the hourly rate at $125 as of March 29, 1996, and the inflation-

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adjusted rate is $193.20. (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 240.647 in

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July 2016, when the work on the Motion to Compel Discovery and Motion for Discovery

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Sanctions was conducted. (Decl. Senra Regarding Costs 3, ECF No. 29.) She further

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indicates that the consumer price index for urban consumers in March of 1996 was 155.7.

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(Id.) After reviewing the relevant data from the Bureau of Labor Statistics, the Court

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finds that these numbers are accurate. See CPI Detailed Report: Data for July 2016,

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Bureau of Labor Statistics 4, 70 (Malik Crawford, Jonathan Church & Bradley Akin eds.,

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2016), http://www.bls.gov/cpi/#tables (select “CPI Detailed Report (complete text and

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tables) July 2016”). Further, Senra’s calculation of the enhanced EAJA base rate as

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$193.20 is accurate and consistent with the Ninth Circuit’s ruling in Sorenson. The rate

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for six and a half hours of attorney time totals $1,255.80, which is the amount that

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Plaintiff seeks in attorney’s fees. The Court finds that this is a reasonable award of

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attorney’s fees for the amount of time spent bringing the Motion to Compel Discovery

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and Motion for Discovery Sanctions. As a result, the United States is awarded $1,255.80

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in attorney’s fees.

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//
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IV. CONCLUSION

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In sum, Plaintiff is awarded $653.66 in costs and $1,255.80 in attorney’s fees,

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totaling $1909.46. 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: October 18, 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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