Rucker v. Venture Airlines

Filing 133

ORDER GRANTING DEFENDANT'S MOTION FOR ATTORNEY'S FEES re 117 - Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 9/18/2017. "In accordance with the foregoing, the Court HEREBY GRANTS Defendant's Motion for Attorney& #039;s Fees, filed July 27, 2017. Defendant is entitled to $1,842.50 in attorneys' fees. Plaintiff is to remit payment to defense counsel by October 9, 2017." (emt, )CERTIFICATE OF SERV ICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Katrina Rucker served by first class mail to the address of record on September 19, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KATRINA RUCKER,

) CIVIL NO. 16-00492 HG-KSC
)
Plaintiff,
) ORDER GRANTING DEFENDANT’S
vs.
) MOTION FOR ATTORNEY’S FEES
)
)
AIR VENTURES HAWAII, LLC,
)
)
)
Defendant.
)
_____________________________ )
ORDER GRANTING DEFENDANT’S MOTION FOR ATTORNEY’S FEES
Before the Court is Defendant Air Ventures Hawaii,
LLC’s (“Defendant”) Motion for Attorney’s Fees, filed July 27,
2017.

Plaintiff Katrina Rucker (“Plaintiff”) did not file an

opposition to Defendant’s Motion.

After careful consideration of

Defendant’s submissions and the applicable law, the Court HEREBY
GRANTS the Motion for the reasons stated below.
BACKGROUND
Between April 14 and 18, 2017, Plaintiff mailed
(via certified mail) subpoenas to Defendant,1 commanding
the production of documents by April 28, 2017.

The subpoenas

were addressed to Defendant’s (1) General Manager Jill
Briley; (2) liability insurance company adjuster Shari
Thompson; and (3) pilots Eric Johnson, Brian Fitchett, Paul
Fulghum, and Harry Dalsay.

1

With respect to Messrs. Johnson,

The subpoenas were mailed directly to Defendant, not
to counsel.

Fitchett, Fulghum, and Dalsay, the subpoenas requested “[a]ll
school records (elementary to present), all psychological
evaluations, church records, military records, a fifty year
employment history list, and all safety training classes
attended. Bank records January 2014 to present.”
Ex. A.

Doc. No. 91,

The same information was requested of Ms. Briley, along

with 39 additional categories of documents.

Id.

On June 28, 2017, this Court issued an Order Granting
(1) Defendants’ Motion to Quash Plaintiff’s Subpoenas Dated April
14, 2017 and (2) Starr Adjustment Services, Inc.’s Motion to
Quash Subpoena Dated April 18, 2017 (“Order”).

Doc. No. 110.

The Court quashed multiple subpoenas because Plaintiff failed to
obtain the signature of the Clerk of Court; she failed to
personally serve the subpoenas; and the subpoenas were unduly
burdensome and failed to allow reasonable time to comply.
DISCUSSION
Defendant requests $1,845.00 in attorneys’ fees against
Plaintiff due to her violation of Federal Rules of Civil
Procedure (“FRCP”) 26(g)(1)(B) and 45(d)(1).

FRCP 45(d)(1)

provides:
A party or attorney responsible for issuing and
serving a subpoena must take reasonable steps to
avoid imposing undue burden or expense on a person
subject to the subpoena. The court for the
district where compliance is required must enforce
this duty and impose an appropriate
sanction--which may include lost earnings and
reasonable attorney’s fees--on a party or attorney
2

who fails to comply.
Fed. R. Civ. P. 45(d)(1).

FRCP 45(d)(1) sanctions are

discretionary, Legal Voice v. Stormans, Inc., 738 F.3d 1178, 1185
(9th Cir. 2013), and “courts have discretion over the type and
degree of sanction imposed.”

Mount Hope Church v. Bash Back!,

705 F.3d 418, 425 (9th Cir. 2012).

One form of permissible

sanction is payment of the opposing counsel’s attorneys’ fees.
Id.
A party is not exposed to sanctions merely because it
has lost a motion to compel.

Legal Voice, 738 F.3d at 1185

(citing Mount Hope Church, 705 F.3d at 425-27).

“Similarly,

while failure narrowly to tailor a subpoena may be a ground for
sanctions, the district court need not impose sanctions every
time it finds a subpoena overbroad; such overbreadth may
sometimes result from normal advocacy, which we have said should
not give rise to sanctions.”
F.3d at 426).

Id. (citing Mount Hope Church, 705

Sanctions may be imposed, however “when a party

issues a subpoena in bad faith, for an improper purpose, or in a
manner inconsistent with existing law.”

Id. (citing Mount Hope

Church, 705 F.3d at 425, 428; Mattel, Inc. v. Walking Mountain
Prods., 353 F.3d 792, 814 (9th Cir. 2003)).
FRCP 26(g)(1)(B) “requires parties seeking discovery to
act (1) consistently with the rules of existing law or with good
reason to change the law; (2) without bad faith; and (3)

3

reasonably without imposing undue burden or expense considering
the needs of the case.”

Mount Hope Church, 705 F.3d at 425.

A

violation of any of these duties without substantial
justification mandates the imposition of an appropriate sanction,
such as reasonable expenses, including attorneys’ fees, caused by
the violation.

Id.; Fed. R. Civ. P. 26(g)(3).2

“Because Rule

45[(d)](1) gives ‘specific application’ to Rule 26(g), it follows
that a violation of any one of the Rule 26 duties will be
relevant to assessing propriety of sanctions under Rule
45[(d)](1)’s ‘undue burden’ language.”

Mount Hope Church, 705

F.3d at 425.
Here, an award of sanctions is appropriate because the
subpoenas imposed an undue burden on Defendant, they were
inconsistent with existing law, and they were for an improper
purpose.

As already noted, Plaintiff failed to obtain the

signature of the Clerk of Court; she failed to personally serve
the subpoenas; and the subpoenas were unduly burdensome and
failed to allow reasonable time to comply.

2

The failure to obtain

FRCP 26(g)(3) provides:
If a certification violates this rule without
substantial justification, the court, on motion or
on its own, must impose an appropriate sanction on
the signer, the party on whose behalf the signer
was acting, or both. The sanction may include an
order to pay the reasonable expenses, including
attorney’s fees, caused by the violation.

Fed. R. Civ. P. 26(g)(3).
4

the Clerk of Court’s signature and to effect personal service is
in contravention of FRCP 45’s requirements.3

Moreover, the four-

day window to comply imposed an undue burden and was inconsistent
with existing law.

Finally, the overbreadth and irrelevance of

the subpoenas demonstrated that they were issued for an improper
purpose.

As earlier noted, the subpoenas requested “[a]ll school

records (elementary to present), all psychological evaluations,
church records, military records, a fifty year employment history
list, and all safety training classes attended.
January 2014 to present.”

Doc. No. 91, Ex. A.

exceeded the bounds of normal advocacy.

Bank records
The requests far

For these reasons,

Defendant is entitled to sanctions in the form of attorneys’
fees.

Beaver Cty. Employees’ Ret. Fund v. Tile Shop Holdings,

Inc., No. 16-MC-80076-JSC, 2016 WL 7212308, at *4 (N.D. Cal. Dec.
13, 2016) (awarding sanctions pursuant to FRCP 45(d)(1)); Sec. &
Exch. Comm’n v. Schooler, No. 316CV00517MMDWGC, 2016 WL 6821079,
at *5 (D. Nev. Nov. 17, 2016) (awarding $10,661.00 in sanctions
pursuant to FRCP 45(d)(1)).
A.

Fee Award
Hawaii courts calculate reasonable attorneys’ fees

based on a method that is virtually identical to the traditional

3

Plaintiff inexplicably mailed the subpoenas before
obtaining a response to her request for issuance of the subpoenas
from the Clerk’s office and did not withdraw the subpoena after
being informed that it was deficient.
5

“lodestar” calculation set forth in Hensley v. Eckerhart, 461
U.S. 424, 433 (1983).

See DFS Group L.P. v. Paiea Props., 110

Hawai‘i 217, 222, 131 P.3d 500, 505 (2006).

The court must

determine a reasonable fee by multiplying the number of hours
reasonably expended by a reasonable hourly rate.

Id. at 222-23,

131 P.3d at 505-06.
1.

Hourly Rates
Defendant requests a $205 hourly rate for its counsel,

Stephen Dyer.

Mr. Dyer is a senior partner at the firm of Chong,

Nishimoto, Sia, Nakamura, & Goya with over 30 years of experience
in litigation.

The Hawaii courts consider the reasonable hourly

rate in a manner virtually identical to the traditional lodestar
formulation and some courts have considered federal law in
determining a reasonable hourly rate.

See, e.g., Reiche v.

Ferrera, No. 24449, 2003 WL 139608, at *8 (Haw. Ct. App. Jan. 16,
2003) (“The reasonable hourly rate is that prevailing in the
community for similar work.” (citing United States v. Metro.
Dist. Comm’n, 847 F.2d 12, 19 (1st Cir. 1988)).

The Court

therefore finds that federal case law on the determination of a
reasonable hourly rate is instructive in this case.
In determining the reasonableness of an hourly rate,
the experience, skill, and reputation of the attorney requesting
fees are taken into account.

See Webb v. Ada County, 285 F.3d

829, 840 & n.6 (9th Cir. 2002).

The reasonable hourly rate

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should reflect the prevailing market rates in the community.

See

id.; Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992), as
amended on denial of reh’g, (1993) (noting that the rate awarded
should reflect “the rates of attorneys practicing in the forum
district”).
This Court is well aware of the prevailing rates in the
community for similar services performed by attorneys of
comparable experience, skill and reputation.

Based on this

Court’s knowledge of the community’s prevailing rates, the hourly
rates generally granted by the Court, the Court’s familiarity
with this case, and counsel’s submissions, this Court finds that
Mr. Dyer’s $205 hourly rate is manifestly reasonable.

See, e.g.,

Booth v. Wong, No. CIV. 10-00680 DKW-RLP, 2015 WL 4663994, at *3
(D. Haw. July 17, 2015), adopted by 2015 WL 4676343 (D. Haw. Aug.
5, 2015) (finding reasonable a $300 hourly rate for an attorney
with 20 years of experience); Pelayo v. Platinum Limousine
Servs., Inc., No. CV 15-00023 DKW-KJM, 2016 WL 5402185, at *5 (D.
Haw. Sept. 27, 2016) (finding reasonable an hourly rate of $310
for an attorney with 27 years of experience).
2.

Hours Expended
Beyond establishing a reasonable hourly rate, a

prevailing party seeking attorneys’ fees bears the burden of
proving that the fees and costs taxed are associated with the
relief requested and are reasonably necessary to achieve the

7

results obtained.

Tirona v. State Farm Mut. Auto. Ins. Co., 821

F. Supp. 632, 636 (D. Haw. 1993) (citations omitted).

The court

must guard against awarding fees and costs which are excessive,
and must determine which fees and costs were self-imposed and
avoidable.

Id. at 637 (citing INVST Fin. Group v. Chem-Nuclear

Sys., 815 F.2d 391, 404 (6th Cir. 1987)).

Courts have the

“discretion to ‘trim fat’ from, or otherwise reduce, the number
of hours claimed to have been spent on the case.”

Soler v. G &

U, Inc., 801 F. Supp. 1056, 1060 (S.D.N.Y. 1992) (citation
omitted).

Time expended on work deemed “excessive, redundant, or

otherwise unnecessary” shall not be compensated.

See Gates, 987

F.2d at 1399 (quoting Hensley, 461 U.S. at 433-34).
After careful review of Mr. Dyer’s time entries, the
Court finds that they are reasonable, with the limited exception
of his review of a court notice regarding the hearing date on
Defendant’s motion to quash, which is a clerical task4 and

4

“[C]lerical or ministerial costs are part of an
attorney’s overhead and are reflected in the charged hourly
rate.” HRPT Props. Trust v. Lingle, 775 F. Supp. 2d 1225, 1241
(D. Haw. 2011) (alteration in original) (citations and quotations
omitted). The following is a list of tasks previously deemed
clerical or ministerial in this district and are therefore noncompensable:
reviewing Court-generated notices; scheduling
dates and deadlines; calendering dates and
deadlines; notifying a client of dates and
deadlines; preparing documents for filing with the
Court; filing documents with the Court; informing
a client that a document has been filed;
personally delivering documents; bates stamping
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therefore non-compensable.

Applying this reduction of 0.1 hours,

the Court finds that Mr. Dyer reasonably expended 8.9 hours.
With the application of Mr. Dyer’s $205 hourly rate to the
foregoing hours, Defendant reasonably incurred $1,824.50 in
attorneys’ fees.
CONCLUSION
In accordance with the foregoing, the Court HEREBY
GRANTS Defendant’s Motion for Attorney’s Fees, filed July 27,
2017.

Defendant is entitled to $1,842.50 in attorneys’ fees.

Plaintiff is to remit payment to defense counsel by October 9,
2017.

and other labeling of documents; maintaining and
pulling files; copying, printing, and scanning
documents; receiving, downloading, and emailing
documents; and communicating with Court staff.
Haw. Motorsports Inv., Inc. v. Clayton Grp. Servs., Inc., Civ.
No. 09–00304 SOM–BMK, 2010 WL 4974867, at *5 (D. Haw. Dec. 1,
2010), adopted by 2010 WL 5395669 (D. Haw. Dec. 22, 2010) (also
deeming clerical identification and organization of exhibits);
see also, e.g., Yamada v. Weaver, Civil No. 10–00497 JMS–RLP,
2012 WL 6019363, at *10 (D. Haw. Aug. 30, 2012), adopted in
pertinent part by 2012 WL 6019121 (D. Haw. Nov. 30, 2012)
(deeming clerical work completed on table of authorities).
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IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, September 18, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

CIVIL NO. 16-00492 HG-KSC; RUCKER V. AIR VENTURES HAWAII, LLC; ORDER GRANTING
DEFENDANT’S MOTION FOR ATTORNEY’S FEES

10