Popescu v. San Diego, City of et al

Filing 53

ORDER granting in part and denying in part Defendants' 50 Ex Parte Motion for Attorney Fees. Court concludes that the appropriate amount of expenses awarded to the City of San Diego under the unique circumstances in this case under Rule 37 is $1,004.64. Plaintiff shall pay the City of San Diego $1,004.64 by 3/27/2017. Failure to timely pay shall constitute grounds for further sanctions, including terminating sanctions. Signed by Magistrate Judge Jill L. Burkhardt on 2/27/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 Case No.: 15-cv-01657-BAS-JLB Virgil Popescu, 7 Plaintiff, 8 v. 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ EX PARTE MOTION FOR ATTORNEY’S FEES City of San Diego, et al., Defendants. 10 [ECF No. 50] 11 12 Before the Court is Defendants’ motion seeking attorney’s fees and costs incurred 13 in connection with their successful motion to compel. (ECF Nos. 30, 50.) The motion is 14 unopposed as pro se Plaintiff Virgil Popescu failed to file an opposition to the motion. 15 I. BACKGROUND 16 On August 18, 2016, this Court issued an order setting this case for an Early Neutral 17 Evaluation Conference and a Case Management Conference. (ECF No. 18.) The order set 18 forth mandatory directions for the parties, including that the parties were required to submit 19 settlement statements and a joint discovery plan to the Court. (Id. at ¶¶4, 7.) Pro se Plaintiff 20 Virgil Popescu failed to both submit a settlement statement and participate in the discovery 21 plan that was filed on behalf of Defendants only. (See ECF No. 20.) Thus, on September 22 6, 2016 and as a prelude to the Early Neutral Evaluation Conference, Magistrate Judge Jill 23 L. Burkhardt admonished Plaintiff that moving forward he would need to follow court 24 orders regardless of his view on the value of what was being ordered. 25 Later on September 6, 2016 after the conclusion of the Early Neutral Evaluation 26 Conference, this Court held an in-person Case Management Conference with Plaintiff and 27 counsel for Defendants present. (ECF No. 21.) During the Case Management Conference, 28 Magistrate Judge Jill L. Burkhardt communicated to the parties that a scheduling order 1 15-cv-01657-BAS-JLB 1 would issue setting December 16, 2016 as the deadline for all parties to complete all fact 2 discovery. Judge Burkhardt further explained the timing and procedural requirements for 3 addressing discovery disputes between the parties under her chambers rules. Plaintiff 4 communicated to the Court that he has a legal background as a lawyer in Romania. Further, 5 the Court provided Plaintiff with a courtesy paper copy of both the Standing Order for Civil 6 Cases for the Honorable Cynthia Bashant (see ECF No. 22 at ¶1) and the Civil Chambers 7 Rules for Magistrate Judge Jill L. Burkhardt. 8 The scheduling order for this case issued on September 7, 2016, setting December 9 16, 2016 as the deadline for all parties to complete all fact discovery. (ECF No. 22.) The 10 scheduling order also instructed that, “Counsel shall promptly and in good faith meet 11 and confer with regard to all discovery disputes in compliance with Local Rule 12 26.1(a). . . . If the parties reach an impasse on any discovery issue, counsel shall file an 13 appropriate motion within the time limit and procedures outlined in the undersigned 14 magistrate judge’s chambers rules. A failure to comply in this regard will result in a 15 waiver of a party’s discovery issue.” (Id. at ¶5 (emphasis in original).) 16 On November 1, 2016, and in compliance with the procedures outlined in Judge 17 Burkhardt’s chambers rules, the parties sought Judge Burkhardt’s assistance with 18 discovery disputes over both a deposition notice and written discovery served on Plaintiff. 19 (ECF No. 23.) On November 8, 2016, the Court held a telephonic Discovery Conference 20 to address these disputes. (Id.; ECF No. 27.) 21 With respect to the deposition notice, Plaintiff’s only objection was that he believed 22 his safety would be compromised if Defendants videotaped his deposition. (ECF No. 33.) 23 Plaintiff affirmatively represented that he did not have any issues to raise with the Court 24 with respect to the location, date, and time for his deposition. Because Plaintiff had never 25 provided Defendants with any written response to his deposition notice, the Court advised 26 Plaintiff that he was to file any objections he had to the deposition being videotaped by 27 28 2 15-cv-01657-BAS-JLB 1 November 14, 2016 at 4:00 p.m.1 The Court concluded the Discovery Conference by 2 directing the parties that they were to proceed with the deposition as noticed and the Court 3 would be issuing an order as to whether or not the deposition would be videotaped. (ECF 4 No. 27, 33.) 5 An order issued providing the parties with a briefing schedule, including deadlines 6 for the parties to brief Plaintiff’s objection to having his deposition videotaped. (Id.) 7 Plaintiff did not comply with his court ordered deadline. (ECF No. 33 at 1.) On November 8 21, 2016, the Court issued the following order: 9 Based on the record before the Court, Plaintiff’s objection to sitting for a videotaped deposition is OVERRULED for several reasons: (1) Plaintiff failed to timely object in writing to Defendants concerning the notice of deposition; (2) Plaintiff failed to file an objection as ordered by this Court; (3) Defendants have met their burden to show good cause exists to video record Plaintiff’s deposition; and (4) there is nothing in the record to suggest that Plaintiff has good cause for his objection. 10 11 12 13 14 Accordingly, PLAINTIFF VIRGIL POPESCU IS HEREBY ORDERED to sit for his videotaped deposition on November 29, 2016 at U.S. Legal Support located at 1230 Columbia Street, Suite 400, San Diego, California, 92101 at 10:00 a.m. and is FURTHER CAUTIONED that failure to comply with this order, including a failure to meaningfully participate in the November 29, 2016 deposition, shall constitute grounds for, and may result in, the imposition of TERMINATING AND MONETARY SANCTIONS. See Valley Engineers Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1056 (9th Cir. 1998) (“Federal Rule of Civil Procedure 37(b)(2) gives a district judge discretion to ‘make such orders . . . as are just’ in regard to a party’s failure to obey a discovery order, including dismissal”); Virtual Vision, Inc. v. Praegitzer Indus., Inc., 124 F.3d 1140, 1143-45 (9th Cir. 1997) (affirming the entry of default judgment against noncompliant party where “there is record evidence that noncompliance was due to willfulness, bad faith, or fault”). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court further issues the following PROTECTIVE ORDER: IT IS HEREBY ORDERED that the video recording of Plaintiff’s deposition shall                                                                   1 The Court impressed upon Plaintiff that the Court would need to receive his papers by that deadline and that Plaintiff was responsible for making arrangements to come to the courthouse to file his papers in person by the deadline if necessary. 3 15-cv-01657-BAS-JLB 1 not be shared with the San Diego Police Department absent further court order. 2 3 (Id. at 2-3.) Plaintiff did not sit for his deposition as ordered by the Court.2 4 Turning to the parties’ dispute over written discovery served on Plaintiff, this also 5 was addressed at the Court’s November 8, 2016 Discovery Conference. (ECF Nos. 23, 6 27.) At the Discovery Conference, Plaintiff orally objected that the discovery sought was 7 irrelevant and harassing. Plaintiff also engaged in name-calling directed toward defense 8 counsel and stated that if he were younger, he “would knock his [(defense counsel’s)] head 9 off.” Judge Burkhardt admonished Plaintiff against the use of name-calling and threats. 10 The order that issued following the Discovery Conference included deadlines both for 11 Plaintiff to respond in writing to the discovery propounded on him and for the parties to 12 brief whether an order should issue compelling Plaintiff to respond to document requests, 13 interrogatories, and requests for admission. (ECF No. 27.) The parties complied with these 14 deadlines. (ECF Nos. 30, 35, 36.) 15 On December 12, 2016 at 11:26 a.m., while Defendants’ motion to compel (ECF 16 No. 30) was pending, the Court received a joint voicemail message from Plaintiff and 17 Defendants’ counsel. With Defendants’ counsel on the line, Plaintiff represented in 18 pertinent part that he “notified Mr. Phillips that I agree to a videotaped deposition” and that 19 he [Plaintiff] “decided also that I am going to cooperate. I am going to answer to his 20 interrogatories the way they were written, and I am going to produce the documents the 21 way they were requested.” Plaintiff made no representations as to when he would provide 22 the aforementioned discovery to Defendants. Plaintiff made no representations specific to 23 Defendants’ requests for admission or for monetary sanction and attorney’s fees. 24 25 26 27 28                                                                   2 There are references in the record to the possibility that Plaintiff’s poor health prevented him from sitting for his deposition. (See, e.g., ECF No 43 n.1.) There is no evidence before this Court on this issue. For example, as noted in this Court’s December 12, 2016 Order, “[t]here is no verifiable medical evidence providing specifics concerning Plaintiff’s health and the Court is not persuaded that his failure to timely raise this new objection [(about his “poor health”)] was due to circumstances beyond his control.” (Id.) 4 15-cv-01657-BAS-JLB 1 Following that voicemail message, and also on December 12, 2016, the Court issued 2 an order compelling Plaintiff to provide Defendants with discovery on or before December 3 28, 2016 and granting Defendants’ request for attorneys’ fees and costs incurred in 4 connection with their motion to compel. (ECF No. 43.) In its Order, the Court warned 5 Plaintiff as follows: “the Court CAUTIONS that future failure by Plaintiff to comply with 6 discovery obligations and orders may warrant, in addition to the consequences addressed 7 above, entry of dispositive sanctions. Accordingly, the Court hereby GIVES NOTICE to 8 Plaintiff that further failure to comply with discovery orders or to meaningfully participate 9 in discovery, even absent an order to compel, may result in the dismissal of Plaintiff’s 10 claims pursuant to Rule 37(b) and/or the Civil Local Rules of this district court.” (ECF 11 No. 43 at 6.) 12 Also in its December 12, 2016 Order, the Court directed the parties to meet and 13 confer regarding the amount of reasonable fees and costs that Plaintiff would pay to 14 Defendants as a Federal Rule of Civil Procedure 37 sanction. The Court also issued a 15 briefing schedule for the parties to seek the Court’s determination of the amount of 16 reasonable fees and costs Plaintiff owes to Defendants for their work in researching, 17 drafting, and finalizing their successful motion to compel. (Id. at 5.) 18 On January 20, 2017, Defendants filed their motion seeking attorney’s fees and costs 19 incurred in connection with their successful motion to compel. (ECF No. 50.) The deadline 20 for Plaintiff to file an opposition was January 30, 2017. (ECF No. 43 at 5.) No opposition 21 was filed on January 30, 2017, or thereafter. 22 II. LEGAL STANDARD 23 Federal Rule of Civil Procedure 37(a)(5)(A) provides that if the court grants a motion 24 to compel discovery, it “must” order the non-moving party to pay the moving party’s 25 “reasonable expenses incurred in making the motion, including attorney’s fees.” Fed. R. 26 Civ. P. 37(a)(5)(A). However, the Rule recognizes various exceptions, such as where the 27 court finds the non-moving party’s nondisclosure, response, or objection was substantially 28 justified or “other circumstances make an award of expenses unjust.” Id. A third exception 5 15-cv-01657-BAS-JLB 1 is where “the movant filed the motion before attempting in good faith to obtain the 2 disclosure or discovery without court action.” Fed. R. Civ. P. 37(a)(5)(A)(i). 3 “By the very nature of its language, sanctions imposed under Rule 37 must be left to 4 the sound discretion of the trial judge.” O’Connell v. Fernandez–Pol, 542 F. App’x. 546, 5 547-48 (9th Cir. 2013) (unpublished memorandum disposition) (citing Craig v. Far West 6 Eng’g Co., 265 F.2d 251, 260 (9th Cir. 1959)). “Overall, sanctions imposed under Rule 7 37 should deter the [disobedient party’s] conduct, and remedy any prejudice it caused the 8 [obedient party].” S. Cal. Stroke Rehab. Assocs. v. Nautilus, No. 09cv744 JLS (AJB), 2010 9 WL 2998839, at *2 (S.D. Cal. July 29, 2010) (citing Pioneer Drive, LLC. v. Nissan Diesel 10 America, Inc., 262 F.R.D. 552, 560 (D. Mont. 2009)). 11 III. DISCUSSION 12 This Court already determined that Plaintiff must pay Defendants’ reasonable 13 expenses incurred by the City of San Diego in making its motion to compel responses to 14 discovery requests, interrogatories, and requests for admission. (ECF No. 43.) The only 15 issue remaining before the Court is the appropriate amount of expenses to award the City 16 of San Diego with respect to its motion to compel.3 17 In its moving papers, the City of San Diego states that the total cost of bringing the 18 relevant motion to compel is $6,050. (ECF Nos. 50, 50-1.) This number reflects 12.1 hours 19 of Deputy City Attorney Keith Phillip’s attorney time, billable at $500 per hour. (Id.) 20 Having reviewed the detailed invoice submitted, the Court finds that only the following 6.7 21 hours of attorney time to be reasonably attributable to making the motion to compel for 22 which an award of reasonable expenses was ordered:4 23                                                                   24 3 25 26 27 28 This order does not address the appropriateness of sanctions for Plaintiff’s failure to sit for his November 29, 2016 deposition, for violation of this Court’s November 21, 2016 order (ECF No. 33), or for failure to comply with this Court’s December 12, 2016 Order compelling discovery responses (ECF No. 43), as these matters are the subject of Defendants’ pending Motion for Terminating Sanctions and/or Monetary Sanctions (ECF No. 51). Plaintiff’s deadline to file a response to that motion is February 27, 2017. 4 The Court removed entries that were not attributable to the motion to compel at issue. The Court also eliminated entries that appear to be time fairly attributable to meet and confer efforts. The Court’s Local Rules require opposing counsel to meet and confer concerning all disputed issues prior to bringing any discovery motion before the Court. CivLR 26.1.a. As such, hours spent meeting and conferring generally 6 15-cv-01657-BAS-JLB 1 2 3 11/14/2016 4 5 6 11/14/2016 11/14/2016 7 8 9 10 11/14/2016 11/14/2016 11/14/2016 11 12 11/14/2016 13 14 11/14/2016 15 16 17 18 19 11/30/2016 12/29/2016 Draft Notice of Motion and Motion to Compel, Deem Facts Admitted and Request for Monetary Sanctions and Attorney’s Fees. Research authorities for motion to compel Interrogatories and Requests for Production of Documents for Motion to Compel. Research authorities for Motion to Deem Admissions admitted for Motion. Research authorities for Motion for Monetary Sanctions and Attorney’s Fees for Motion to Compel. Review Chamber rules regarding Motions to Compel and Discovery Motions. Research authorities concerning Plaintiff’s “Relevance” objection. Draft my declaration in support of the Defendants’ Motion to Compel, Deem Facts Admitted and Request for Monetary Sanctions and Attorney’s Fees. Draft the memorandum of points and authorities in support of Defendants’ Motion to Compel, Deem Facts Admitted and Request for Monetary Sanctions and Attorney’s Fees. Draft Reply to Plaintiff’s Opposition to Motion to Compel, Deem facts admitted, for monetary sanction and attorney’s fees. Draft declaration concerning calculation of Attorney’s Fees. .2 .3 .2 .5 .1 .4 .5 2.9 .2 1.4 20 21 22 23 24 25 (See ECF No. 50-1 at 6-7.) According to Defendants, a reasonable hourly rate for a lawyer with Mr. Phillips’ skills and experience in San Diego would be over $500 per hour. While Mr. Phillips may reasonably charge $500 per hour in the private sector, he is a government attorney. Compare Trevino v. Gates, 99 F.3d 911, 925 (9th Cir. 1996) (agreeing with the Eleventh 26                                                                   27 should not be included in an attorneys’ fees award. See Matlink, Inc. v. Home Depot U.S.A., Inc., No. 07cv1994-DMS (BLM), 2008 WL 8504767, at *5 (S.D. Cal. Oct. 27, 2008). Because defense counsel would have incurred the fees associated with his meet and confer efforts regardless of their fruitfulness, the Court declines to award time fairly attributable to meet and confer efforts. 28 7 15-cv-01657-BAS-JLB 1 Circuit’s ruling in Brooks v. Georgia State Board of Elections, 997 F.2d 857, 869-70 (11th 2 Cir. 1993) that “the fee charged by a government attorney is simply irrelevant to the 3 establishment of a reasonable hourly rate for a Plaintiff’s civil rights lawyer”). Defendants 4 have not met their burden to establish $500 per hour is reasonable hourly rate for Mr. 5 Phillips as a government attorney. 6 More analogous here is the rate awarded to government attorneys under the Equal 7 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. As of October 2016, the inflation- 8 adjusted hourly rate for EAJA attorneys is $193.20. United States v. Fuess, 2016 WL 9 6124488, No. 15cv1148-BEN (RBB), *2 (S.D. Cal. Oct. 18, 2016). An award for 6.7 hours 10 of attorney time at rate of $193.20 per hour equates to $1,294.44. 11 In determining the reasonableness of an attorney fee award pursuant to Rule 37, 12 courts must consider whether circumstances exist that make an award of expenses unjust. 13 Fed. R. Civ. P. 37(a)(5)(A)(iii). However, “the burden of showing substantial justification 14 and special circumstances is on the party being sanctioned.” Hyde & Drath v. Baker, 24 15 F.3d 1162, 1171 (9th Cir. 1994). Plaintiff’s opportunity to be heard on the reasonableness 16 of Defendants’ expenses was January 30, 2017, and he failed to file an opposition to the 17 instant motion. 18 The circumstances before the Court include a record wherein the Court issued 19 repeated warnings to Plaintiff that sanctions may issue for his noncompliance with court 20 orders. Despite these repeated warnings, Plaintiff is seemingly unapologetic for his 21 intentional failures to participate in discovery. Plaintiff is representing himself in pro per 22 in this action, but here, Plaintiff has represented to this Court that he is a sophisticated 23 litigant who has training as a lawyer in Romania.5 Plaintiff is proceeding in forma pauperis 24 25 26 27 28                                                                   5 In the context of the imposition of a monetary sanction pursuant to Federal Rule of Civil Procedure 11, the Ninth Circuit has held that pro se plaintiffs are not exempt from monetary sanctions. See Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir.1994) (noting that a contrary conclusion would effectively place all unrepresented parties beyond the reach of Rule 11). Similarly, the Ninth Circuit has held that 28 U.S.C. § 1927 sanctions may be imposed upon a pro se plaintiff. See Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir.1990). 8 15-cv-01657-BAS-JLB 1 in this case, yet he filed nothing in response to Defendants’ motion seeking $6,050 in 2 attorney’s fees.6 Plaintiff has not met his burden to demonstrate that an award of fees 3 would cause him financial hardship. 4 Nevertheless, in the interest of justice and taking into account the unique 5 circumstances of this case, the Court will further reduce Defendants’ requests for fees by 6 an additional approximately 25%. The Court will award fees for 5.2 hours of attorney time 7 at the rate of $193.20 per hour, for a total fee award of $1,004.64. The Court concludes 8 that $1,004.64 is a reasonable award of attorney’s fees under Rule 37. As a result, the City 9 of San Diego is awarded $1,004.64 in attorney’s fees. 10 IV. CONCLUSION 11 In sum, this Court already determined that Plaintiff must pay Defendants’ reasonable 12 expenses incurred by the City of San Diego in making its motion to compel responses to 13 discovery requests, interrogatories, and requests for admission. (ECF No. 43.) The Court 14 hereby concludes that the appropriate amount of expenses awarded the City of San Diego 15 under the unique circumstances of this case under Rule 37 is $1,004.64. Plaintiff Virgil 16 Popescu shall pay the City of San Diego $1,004.64 on or before March 27, 2017. 17 Failure to timely pay shall constitute grounds for further sanctions, including terminating 18 sanctions. 19 20 IT IS SO ORDERED. Dated: February 27, 2017 21 22 23 24                                                                   6 25 26 27 28 Accordingly, the Court gives little weight to Plaintiff’s now stale declaration from 2015, filed without verifiable documentation, in support of his motion to proceed in forma pauperis. (See ECF No. 2.) There is nothing in the record to suggest that Plaintiff asserted an inability to pay in the context of his refusal to meet and confer with defense counsel on fees. (ECF No. 50-1 at 8 (Phillips Decl.: “Mr. Popescu made it clear the lengths it would take to get a penny from him: ‘I bet my life and I guarantee you 100% that you will not going to collect a penny from me. I wish you good luck.’”).) Moreover, “financial indigence by itself does not necessarily make an award of expenses unjust.” Garity v. Donahoe, No. 11cv01805, 2014 WL 1168913, at *5 (D. Nev. Mar. 21, 2014). 9 15-cv-01657-BAS-JLB

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