Ewing v. K2 Property Development, LLC et al

Filing 131

ORDER Denying Plaintiff's Ex Parte Motions (ECF Nos. 91 and 122 ) and Order to Show Cause. Ewing must pay $2,214.00 to Wright for reasonable fees and costs in litigating these motions within two weeks of the date of this order or by 7/29 /2018. In addition, Ewing is ordered to appear on 7/19/2018 at 1:30 p.m. before Magistrate Judge Clinton Averitte to show cause why this Court should not impose sanctions under Rule 11(b). Signed by Magistrate Judge Clinton Averitte on 7/17/2018. (jdt) (Main Document 131 replaced on 7/17/2018) (yeb).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Anton EWING,

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Case No.: 16-cv-0678-LAB-AGS
Ewing,

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v.

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K2 PROPERTY DEVELOPMENT, LLC,

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ORDER DENYING PLAINTIFF’S EX
PARTE MOTIONS (ECF Nos. 91 &
122) AND ORDER TO SHOW CAUSE

et al.,

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Defendants.

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Over the past month, plaintiff submitted and filed several documents accusing

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defense counsel, her paralegal, and defendant of unethical and even criminal conduct.

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Despite several warnings that the Court would not tolerate unprofessional behavior, the

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result of plaintiff’s filings has been to harass and coerce opposing counsel and defendant.

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For the reasons set out below, plaintiff’s ex parte motions (ECF Nos. 91 & 122) are denied.

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In addition, plaintiff is ordered to appear on July 19, 2018, at 1:30 p.m. and show cause

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why this Court should not sanction him under Federal Rule of Civil Procedure 11.

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BACKGROUND

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On May 15, 2018, Plaintiff Anton Ewing filed an emergency motion for a protective

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order requesting defense counsel, Kimberly Wright, be prohibited from communicating

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with him via email. (ECF No. 91.) Less than one week later, he filed a notice with the court

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accusing Wright of criminal deceit. (ECF No. 99.) That very day, he filed another notice
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alleging that Wright’s paralegal had engaged in unauthorized practice of law. (ECF No.

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101.) The following day, Ewing filed another notice, this time claiming that Wright

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committed felony perjury. (ECF No. 104.) Finally, on June 11, 2018, Ewing filed yet

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another emergency ex parte motion requesting Wright be held in contempt for violating

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this Court’s Order. (ECF No. 122.)

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DISCUSSION

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Ex parte relief is a form of emergency relief, which requires the moving party show

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why regular motion procedures “must be bypassed” and why the use is justified. Mission

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Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 490, 492 (C.D. Cal. 1995).

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Generally, the moving party must show irreparable injury or prejudice will result without

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emergency relief. Id. at 492; see also Souphasith v. ITT Hartford Life & Annuity Ins. Co.,

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15-cv-1269-DAD-SKO, 2016 WL 4011510, at *4 (E.D. Cal. July 26, 2016) (requiring

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adequate showing of good cause or irreparable injury to the party seeking relief).

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A.

Ex Parte Motion for Protective Order

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Ewing’s first emergency ex parte motion requests the Court enter a protective order

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prohibiting Wright from communicating with him via email. He alleges Wright has sent

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his an excessive number of emails, and contends this is improper because he is represented

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by an attorney.

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“The court may, for good cause, issue an order to protect a party or person from

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annoyance, embarrassment, [or] oppression,” among other reasons. Fed. R. Civ. P. 26(c).

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“For good cause to exist, the party seeking protection bears the burden of showing specific

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prejudice or harm will result if no protective order is granted.” Phillips ex rel. Estates of

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Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). “Broad allegations of

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harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule

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26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).

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As a threshold matter, the Court notes Ewing failed to make a good faith attempt to

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meet and confer prior to filing as required by the local rules. Fed. R. Civ. P. 26(c); CivLR

Failure to Meet and Confer

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83.3(g)(2). Ewing asserts that he “called Mrs. Wright’s law firm two times and requested

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a meet and confer,” and that she “refused to return the calls.” (ECF No. 91, at 6.) Wright

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has provided transcripts of the three voicemails left by Ewing on May 15, 2018.

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(ECF No. 92-2, at 45.) Those messages show that Ewing did not request a meet and confer

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before filing this motion and that Wright was not given a reasonable time to return those

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calls.

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At 10:52, Ewing left the first voicemail: it did not request a meet and confer, but

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simply informed Wright of Ewing’s intention to file the motion. At 12:54 p.m. Ewing left

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the second voicemail and demanded Wright cease contacting Ewing via email. At

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2:45 p.m., Ewing filed the motion for a protective order. And finally, at 2:56 p.m.—eleven

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minutes after filing—Ewing left a third voicemail requesting a meet and confer. Ewing’s

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mischaracterization his attempts to meet and confer is unacceptable and does not evidence

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a good faith attempt as required by the Local Rules.

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2.

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Even if this Court were to ignore the failure to meet and confer, the Court declines

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to grant the requested relief. Ewing argues Wright cannot communicate with him directly

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because he is represented by an attorney. Ewing fails to mention that he is actually pursuing

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three cases against this same defendant, but that Ewing is represented in only one of those

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cases, which is filed not only in another court but also in another court system. See Ewing

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v. K2 Prop. Dev., LLC, 37-2018-00022631-CL-BC-CTL (Cal. Super. Ct. 2018). But, in the

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matter before this Court, Ewing is pro se. Thus, Wright must communicate with him

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directly to advance this litigation.

There is no Good Cause to Enter a Protective Order

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Even if Wright must communicate with Ewing directly, Ewing requests that the

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Court prohibit communication via email because (1) there is no local rule, chambers rule,

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or FRCP rule that requires communications via email; (2) “[f]ederal courts have existed

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and operated smoothly for several hundred years in the United States . . . without email;”

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and, (3) in 1996, “only one in ten Americans used email.” (ECF No. 91 at 3.) Ewing cites

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no case or other law to support his request for a protective order.
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First, no rule prohibits email communications because such a rule would run

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contrary to the spirit (if not the letter) of the Federal Rules, which require parties to confer,

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communicate, and cooperate. See, e.g., Fed. R. Civ. P. 5, 26, 37. Ewing’s second and third

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points are irrelevant. Even if the Court were to entertain Ewing’s request, he fails to show

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how receiving emails from Wright will cause him specific harm and, therefore, why a

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protective order is warranted. Indeed, Email provides immediate and convenient notice and

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its use has become commonplace. Thus, Ewing’s request has no basis in law, is meritless,

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and appears to be presented to the Court to harass, annoy, or oppress Wright and defendant.

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B.

Ex Parte Motion to Hold Defense Counsel in Contempt

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Ewing’s second ex parte motion alleges that Wright, violated this Court’s Order

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(ECF No. 62) when she sent an email containing confidential settlement terms to a third

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party via email. (ECF No. 122, at 1.) Wright concedes she sent copies of defendant’s

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motion

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[e-mail], (2) [e-mail], and (3) [e-mail].

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(ECF No. 123, at 2.) Ewing contends that by sending the email to [e-mail],

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Wright put him “in a very precarious position in that the person who owns, uses and

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manages [e-mail] now knows how much this case settled for.” (ECF

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No. 122, at 2.) Ewing goes on to claim that “Wright’s damage is unrepairable and

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permanent. [Thus], Plaintiff Ewing . . . respectfully moves the Court to bring down the

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hammer once and for all and hold attorney Kimberly Wright in contempt of this court’s

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direct order.” (Id. at 2-3.)

to

enforce

settlement

to

following

three

email

addresses:

(1)

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On February 13, 2018, this Court issued an order stating that “if any settlement terms

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[were] revealed in future filings, [the filing party would] be held in contempt . . . .”

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(ECF No. 62.) This order was in response to defendant and his former attorney repeatedly

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filing documents which contained confidential terms and conditions of settlement in the

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public record. While the Court’s intent was to preserve confidentiality, the Court’s order

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did not expressly refer to the parties sharing settlement information with third parties. The

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Court’s intent may have been to prevent sharing settlement terms with the public, but it did
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not intend to prohibit parties from sending information directly to emails specifically listed

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by the plaintiff as parties to be noticed. Ewing argues that by sending the email to

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[e-mail], Wright violated this Order and, therefore, should be held in

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contempt. (ECF No. 122, at 2.) Regardless of whether [e-mail] is owned by

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an independent third party, it was provided by Ewing, and the email in question does not

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violate the Court Order.

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C.

Reasonable Fees and Costs

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The Court must award fees and costs, including reasonable attorney’s fees, when it

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denies either a motion for a protective order or for violation of a court order, and the movant

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was not “substantially justified” in bringing the motion. Fed. R. Civ. P. 37(a)(5)(B)

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& (b)(2)(C). As set out in this order, Ewing had no legal basis to bring either motion.

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Rather, he brought them hastily.

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Reasonable attorney’s fees are calculated using the Lodestar method “by multiplying

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the number of hours . . . reasonably expended on the litigation by a reasonable hourly rate.”

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Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citations omitted).

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The relevant legal community for determining a reasonable rate is “the forum in which the

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district court sits.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1205–06 (9th Cir. 2013).

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Wright submitted a declaration indicating that her hourly rate is $410 per hour. (ECF

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No. 92-1, at 8-9.) She is a nine-year veteran attorney and a partner at her firm. (Id. at 8.)

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Compared to recent cases in this district, the $410/hour rate she seeks is reasonable. See

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Carr v. Tadin, Inc., 51 F. Supp. 3d 970, 981 (S.D. Cal. 2014) (finding a $375/hour rate

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reasonable for a three-year attorney in class action practice); see also Obesity Research

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Inst., LLC v. Fiber Research Int’l, LLC, No. 15-cv-595-BAS-MDD, 2016 WL 1573319,

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at *2-*4 (S.D. Cal. April 18, 2016) (finding $400/hour was a reasonable rate for an

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associate with six years of experience to file a motion to strike); Blair v. CBE Grp., Inc.,

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No. 13cv134-MMA (WVG), 2014 WL 4658731, at *4 (S.D. Cal. Sept. 17, 2014)

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(finding $425/hour reasonable for an associate with four years of experience in a discovery

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dispute for a TCPA claim).
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Wright represents she spent 5.4 hours on the first motion. (ECF No. 92-1, at 8.) The

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Court finds that less than six hours is an appropriate amount of time to read, research, and

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complete a 137-page response, including exhibits, to a six-page emergency motion for

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protective order. Consequently, Ewing is ordered to pay costs and reasonable expenses of

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$2,214.00 to Wright within two weeks.

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D.

Rule 11 Sanctions

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Federal Rule of Civil Procedure 11 is intended “to deter baseless filings in district

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court.” Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 393 (1990). It prohibits a party—

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whether by signing, filing, submitting, or later advocating—from presenting a motion or

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other paper to the court for any improper purpose, such as to harass, cause unnecessary

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delay, or needlessly increase the cost of litigation. Fed. R. Civ. P. 11(b)(1). Similarly, the

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Rule requires that all factual contentions have evidentiary support. 11(b)(3). “[T]he

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violation is complete when the paper is filed.” Cooter & Gell v. Hartmax Corp., 496 U.S.

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384, 398 (1990). The court may order the party “to show cause why [his] conduct . . . has

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not violated Rule 11(b)” on its own initiative. Fed. R. Civ. P. 11(c)(3).

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Both Ewing’s motion to not use email and his motion for contempt due to counsel

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utilizing an address Ewing provided appear frivolous. Ewing’s first motion for a protective

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order caused unnecessary delay and needlessly increased the cost of litigation for Klein

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because it is not “warranted by existing law or by a nonfrivolous argument.” 11(b)(2). In

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reality, it is a motion to prevent counsel from utilizing email.

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Ewing’s second motion similarly appears to be brought for an improper purpose.

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Although the Court’s Order prohibited the parties from filing anything on the docket that

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contained confidential settlement terms, it did not prohibit emailing the terms to a third

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party, particularly one designated by plaintiff as someone to be served with Court orders.

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Ewing’s allegations that he is unassociated with Ms. Clover are not probative. Even his

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motion for contempt was served to [e-mail]. However, per Rule 11, the Court

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must give plaintiff an opportunity to be heard and will consider his pro se status in levying

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any sanctions.
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CONCLUSION

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Ewing’s motions (ECF Nos. 91 and 122) are denied and Ewing must pay $2,214.00

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to Wright for reasonable fees and costs in litigating these motions within two weeks of the

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date of this order or by July 29, 2018. In addition, Ewing is ordered to appear on July 19,

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2018, at 1:30 p.m. to show cause why this Court should not impose sanctions under Rule

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11(b).

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IT IS SO ORDERED.

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Dated: July 17, 2018

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