Mueller v. State of Hawaii Department of Public Safety, et al.

Filing 223

ORDER OVERRULING DEFENDANTS STATE OF HAWAII, DEPARTMENT OF PUBLIC SAFETY AND NOLAN ESPINDA'S OBJECTIONS (ECF No. 209 ) AND AFFIRMING THE MAGISTRATE JUDGE'S ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S REQUEST F OR ATTORNEYS' FEES PURSUANT TO ORDER GRANTING PLAINTIFF'S MOTION TO COMPEL AND GRANTING PLAINTIFF'S MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH THIS COURT'S ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION TO COMPEL DISCOVERY FILED ON SEPTEMBER 23, 2019 (ECF No. 203 ) - Signed by JUDGE HELEN GILLMOR on 2/4/2020. Defendants State of Hawaii, Department of Public Safety and Nolan Espinda's Objection (ECF No. 209) is OVERRUL ED. The Magistrate Judge's November 26, 2019 Order (ECF No. 203) is AFFIRMED. The Court orders Defendants State of Hawaii, Department of Public Safety and Nolan Espinda to pay $4,217.28 to Plaintiff no later than Friday, February 21, 2020. (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELIZABETH A. MUELLER,

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF HAWAII, DEPARTMENT OF )
PUBLIC SAFETY; FREDDIE
)
CARABBACAN, in his individual )
capacity and official capacity )
as Deputy Sheriff, Department )
of Public Safety, State of
)
Hawaii; NOLAN ESPINDA, in his )
individual capacity and
)
official capacity as Director )
of the Department of Public
)
Safety, State of Hawaii; DOE
)
DEFENDANTS 1-10,
)
)
Defendants.
)
_____________________________________ )

CIVIL NO. 17-00571 HG-WRP

ORDER OVERRULING DEFENDANTS STATE OF HAWAII, DEPARTMENT OF PUBLIC
SAFETY AND NOLAN ESPINDA’S OBJECTIONS (ECF No. 209)
AND
AFFIRMING THE MAGISTRATE JUDGE’S ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S REQUEST FOR ATTORNEYS’ FEES PURSUANT
TO ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL AND GRANTING
PLAINTIFF’S MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH THIS
COURT’S ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO COMPEL
DISCOVERY FILED ON SEPTEMBER 23, 2019 (ECF No. 203)
Plaintiff filed a Complaint alleging she was sexually
assaulted by Defendant Deputy Sheriff Freddie Carabbacan while
she was a prisoner in custody of the State of Hawaii, Department
of Public Safety.

Plaintiff was transported from Oahu Community
1

Correctional Center to a hearing before a State Court Judge at
the Circuit Court of the First Circuit, State of Hawaii.
Plaintiff claims that she was assaulted by Defendant Deputy
Sheriff Carabbacan when he performed a “strip search” when she
was in the First Circuit cellblock following the hearing.
On May 1, 2019, Plaintiff served Defendants State of Hawaii,
Department of Public Safety and Nolan Espinda with Plaintiff’s
Second Requests for Production of Documents.
Plaintiff sought the production of documents relating to the
policies of the Department of Public Safety’s assignment of
personnel and transportation of inmates, including:
(1)

The Department of Public Safety Corrections
Administration Policy and Procedures No. COR.08.13
dated July 1, 2010, regarding Duty Assignment for
Corrections Officers; and,

(2)

The Department of Public Safety Corrections
Administration Policy and Procedures No. COR.08.01,
Court Appearance and Transport of Inmates.

Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda did not produce the documents and claimed they were
privileged and not relevant.

Defendants State of Hawaii,

Department of Public Safety and Nolan Espinda also claimed the
second document was confidential.
Plaintiff attempted to schedule a meet and confer with
Defendants State of Hawaii, Department of Public Safety and Nolan
Espinda’s counsel, but their lead counsel stated that she was
unavailable prior to the deadline for filing discovery motions.
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On August 15, 2019, Plaintiff filed a Motion to Compel
Discovery, seeking the two documents.
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda did not file any Opposition to Plaintiff’s Motion
to Compel.
On September 23, 2019, the Magistrate Judge issued an ORDER
GRANTING PLAINTIFF’S UNOPPOSED MOTION TO COMPEL DISCOVERY.

The

Court ordered Defendants State of Hawaii, Department of Public
Safety and Nolan Espinda to produce the two documents by October
4, 2019.

The Magistrate Judge also directed Plaintiff to a file

a Supplemental Declaration as to whether she was entitled to an
award of reasonable expenses for filing the Motion to Compel
Discovery.
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda failed to comply with the Magistrate Judge’s Order.
On October 8, 2019, Plaintiff’s counsel inquired with
opposing counsel about the documents at issue and attempted to
resolve the matter.

Opposing counsel stated that she was not

aware of the Court’s September 23, 2019 Order and continued to
ignore the Court’s Order requiring disclosure of the documents.
On October 11, 2019, Plaintiff filed a Motion for Sanctions
for Failure to Comply with the Court’s Order and a Request for
Attorneys’ Fees.
Defendants State of Hawaii, Department of Public Safety and

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Nolan Espinda opposed the Motion for Sanctions.
On October 18, 2019, Defendants State of Hawaii, Department
of Public Safety and Nolan Espinda produced the two documents,
more than two weeks after the deadline imposed by the Magistrate
Judge and a week after Plaintiff filed her Motion for Sanctions.
On November 26, 2019, the Magistrate Judge issued an ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S REQUEST FOR
ATTORNEYS’ FEES PURSUANT TO ORDER GRANTING PLAINTIFF’S MOTION TO
COMPEL AND GRANTING PLAINTIFF’S MOTION FOR SANCTIONS FOR FAILURE
TO COMPLY WITH THIS COURT’S ORDER GRANTING PLAINTIFF’S UNOPPOSED
MOTION TO COMPEL DISCOVERY FILED ON SEPTEMBER 23, 2019.

(ECF No.

203).
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda filed an Objection to the Magistrate Judge’s
November 26, 2019 Order.
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda’s Objection (ECF No. 209) is OVERRULED.
The Magistrate Judge’s November 26, 2019 Order (ECF No. 203)
is AFFIRMED.

PROCEDURAL HISTORY
On August 15, 2019, Plaintiff filed PLAINTIFF’S MOTION TO
COMPEL DISCOVERY.

(ECF No. 102).

On August 19, 2019, the Magistrate Judge set the briefing

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schedule for Plaintiff’s Motion to Compel Discovery.

(ECF No.

103).
On August 20, 2019, Plaintiff filed a Declaration in Support
of her Motion to Compel Discovery.

(ECF No. 104).

Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda did not file an Opposition to Plaintiff’s Motion to
Compel Discovery.
On September 23, 2019, the Magistrate Judge issued an ORDER
GRANTING PLAINTIFF’S UNOPPOSED MOTION TO COMPEL DISCOVERY.

(ECF

No. 142).
The Magistrate Judge ordered Defendants to produce the two
documents subject to the Motion to Compel no later than October
4, 2019.

(Id.)

The Magistrate Judge also directed Plaintiff to file a
supplemental declaration whether she was entitled to an award of
reasonable expenses pursuant to Fed. R. Civ. P. 37(a)(5)(A) no
later than October 11, 2019.

(Id.)

Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda did not comply with the Court’s September 23, 2019
Order.
On October 11, 2019, Plaintiff filed PLAINTIFF’S MOTION FOR
SANCTIONS FOR FAILURE TO COMPLY WITH THIS COURT’S ORDER GRANTING
PLAINTIFF’S UNOPPOSED MOTION TO COMPEL DISCOVERY FILED ON
SEPTEMBER 23, 2019.

(ECF No. 170).

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On the same date, Plaintiff filed SUPPLEMENTAL DECLARATIONS
OF LANSON K. KUPAU AND MATTHEW J. TERRY IN SUPPORT OF REQUEST FOR
ATTORNEYS’ FEES PURSUANT TO ORDER GRANTING PLAINTIFF ELIZABETH A.
MUELLER’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM
DEFENDANTS STATE OF HAWAII, DEPARTMENT OF PUBLIC SAFETY.

(ECF

No. 171).
On October 18, 2019, Defendants State of Hawaii, Department
of Public Safety and Nolan Espinda filed DEFENDANTS STATE OF
HAWAII, DEPARTMENT OF PUBLIC SAFETY AND NOLAN ESPINDA’S RESPONSE
IN OPPOSITION TO PLAINTIFF’S COUNSEL SUPPLEMENTAL DECLARATIONS IN
SUPPORT OF THEIR REQUEST FOR ATTORNEYS FEES PURSUANT TO ORDER
GRANTING PLAINTIFF ELIZABETH A. MUELLER’S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS FROM STATE DEFENDANTS’, FILED AUGUST 15,
2019.

(ECF No. 177).

On October 22, 2019, Plaintiff filed her Reply.

(ECF No.

179).
On October 25, 2019, Defendants State of Hawaii, Department
of Public Safety and Nolan Espinda filed DEFENDANTS STATE OF
HAWAII DEPARTMENT OF PUBLIC SAFETY AND NOLAN ESPINDA’S MEMORANDUM
IN OPPOSITION TO PLAINTIFF’S MOTION FOR SANCTIONS FOR FAILURE TO
COMPLY WITH THIS COURT’S ORDER GRANTING PLAINTIFF’S UNOPPOSED
MOTION TO COMPEL DISCOVERY FILED ON SEPTEMBER 23, 2019.

(ECF No.

181).
On November 8, 2019, Plaintiff filed PLAINTIFF’S REPLY IN

6

SUPPORT OF MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH THIS
COURT’S ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO COMPEL
DISCOVERY FILED ON SEPTEMBER 23, 2019.

(ECF No. 194).

On November 26, 2019, the Magistrate Judge issued an ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S REQUEST FOR
ATTORNEYS’ FEES PURSUANT TO ORDER GRANTING PLAINTIFF’S MOTION TO
COMPEL AND GRANTING PLAINTIFF’S MOTION FOR SANCTIONS FOR FAILURE
TO COMPLY WITH THIS COURT’S ORDER GRANTING PLAINTIFF’S UNOPPOSED
MOTION TO COMPEL DISCOVERY FILED ON SEPTEMBER 23, 2019.

(ECF No.

203).
On December 6, 2019, Plaintiff filed SUPPLEMENTAL
DECLARATION OF LANSON K. KUPAU AND MATTHEW J. TERRY IN SUPPORT OF
REQUEST FOR ATTORNEYS’ FEES PURSUANT TO ORDER GRANTING PLAINTIFF
ELIZABETH A. MUELLER’S MOTION FOR SANCTIONS FOR FAILURE TO COMPLY
WITH THIS COURT’S ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO
COMPEL DISCOVERY FILED ON SEPTEMBER 23, 2019.

(ECF No. 204).

On December 10, 2019, Defendants State of Hawaii, Department
of Public Safety and Nolan Espinda filed DEFENDANTS STATE OF
HAWAII, DEPARTMENT OF PUBLIC SAFETY AND NOLAN ESPINDA’S
OBJECTIONS TO ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S REQUEST FOR ATTORNEYS’ FEES PURSUANT TO ORDER
GRANTING PLAINTIFF’S MOTION TO COMPEL AND GRANTING PLAINTIFF’S
MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH THIS COURT’S
ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO COMPEL DISCOVERY

7

FILED ON SEPTEMBER 23, 2019.

(ECF No. 209).

On December 23, 2019, Plaintiff filed PLAINTIFF’S RESPONSE
TO DEFENDANTS STATE OF HAWAII, DEPARTMENT OF PUBLIC SAFETY AND
NOLAN ESPINDA’S OBJECTIONS.

(ECF No. 216).

The Court elects to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.1(c).
STANDARD OF REVIEW
Any party may appeal from a magistrate judge’s order
determining a non-dispositive pretrial matter.

District of

Hawaii Local Rule 74.1(a).
A district court may only set aside a magistrate judge’s
order on appeal if it finds the order to be “clearly erroneous or
contrary to law.”

28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.

72(a); Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir.
1991).
The clearly erroneous standard is “significantly deferential
and is not met unless the reviewing court is left with a
‘definite and firm conviction that a mistake has been
committed.’”

Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th

Cir. 2010) (quoting Cohen v. U.S. Dist. Court for N. Dist. of
Cal., 586 F.3d 703, 708 (9th Cir. 2009)).
The clearly erroneous standard applies only to the
magistrate judge’s findings of fact while the legal conclusions

8

are reviewed de novo.

United States v. McConney, 728 F.2d 1195,

1200-01 (9th Cir. 1984).
ANALYSIS
I.

Federal Rule Of Civil Procedure 37(a)(5)(A)(i)

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A)(i),
a court must not award attorneys’ fees unless “the movant filed
the motion before attempting in good faith to obtain the
disclosure or discovery without court action.”

Fed. R. Civ. P.

37(a)(5)(A)(i).
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda argue in their objections that the Magistrate Judge
erred in finding that Plaintiff attempted to obtain the discovery
in good faith before filing their Motion to Compel.
In this case, Plaintiff acted in good faith and requested to
meet and confer with opposing counsel on August 13, 2019, before
the deadline for filing a Motion to Compel by August 15, 2019.
Counsel for Defendants State of Hawaii, Department of Public
Safety and Nolan Espinda responded to Plaintiff’s request by
stating she was in trial and was unable to meet before the
deadline for Plaintiff to file her Motion.

Defendants State of

Hawaii, Department of Public Safety and Nolan Espinda’s counsel
did not make any effort to have any other Deputy Attorney General
meet and confer with Plaintiff before the deadline.
Plaintiff attempted to meet and confer in good faith but the
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Parties were unable to meet.

There is no evidence that

Defendants would have agreed to disclose the documents even if
the Parties had been able to meet and confer in person.
Defendants State of Hawaii, Department of Public Safety and Nolan
Espinda did not provide the discovery pursuant to the Magistrate
Judge’s Order granting Plaintiff’s request.

It was not until

Plaintiff was forced to file a Motion for Sanctions that
Defendants eventually produced the discovery on October 18, 2019.
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda did not file any objection to the Motion to Compel
and ignored the Magistrate Judge’s order requiring them to
disclose the documents by October 4, 2019.
The Magistrate Judge explained that Plaintiff made a good
faith effort to schedule a meet and confer prior to filing her
Motion, but Defendants State of Hawaii, Department of Public
Safety and Nolan Espinda’s counsel prevented the Parties from
meeting.

(November 26, 2019 Order at pp. 3-5, ECF No. 203).

There was no clear error in the Magistrate Judge’s
determination that Plaintiff made a good faith effort to obtain
the discovery before filing her Motion to Compel.
II.

Relevance
Defendants State of Hawaii, Department of Public Safety and

Nolan Espinda argue that the two documents that they declined to

10

timely produce are irrelevant.
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda never made a timely objection to Plaintiff’s Motion
to Compel Discovery and raise these arguments for the first time
months after the Magistrate Judge issued his September 23, 2019
Order, which they ignored until October 18, 2019.
The Magistrate Judge explained that Plaintiff established
good cause for the disclosure of the documents, in part, due to
Defendants State of Hawaii, Department of Public Safety and Nolan
Espinda’s lack of opposition.

(September 23, 2019 Order at p. 2,

ECF No. 142).
Relevance is construed liberally and encompasses any matter
that bears on, or that reasonably could lead to other matters
that could bear on, any issue that is or may be in the case.
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
The documents at issue are relevant to Plaintiff’s claims of
negligence against the Department of Public Safety, including
whether the Department of Public Safety had a policy regarding
its staffing of male employees to perform searches or to
transport female inmates such as Plaintiff.
There was no clear error in the Magistrate Judge’s
determination that the documents Plaintiff requested were
relevant.

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III. Amount of Fees
A.

Reasonable Prevailing Rates

The Magistrate Judge awarded Plaintiff’s reasonable expenses
in the amount of $4,217.28.
In their Objections, Defendants State of Hawaii, Department
of Public Safety and Nolan Espinda argue that the reasonable
hourly rates as found by the Magistrate Judge are “excessively
high.”

Defendants State of Hawaii, Department of Public Safety

and Nolan Espinda provide no evidence for their position.
Defendants cite to one case that was issued nearly eight years
ago and ask for the Court to award the rates provided in the
eight-year-old decision.

Defendants’ argument that the Court

should apply market rates from eight years ago rather than the
current market rates in the community is not persuasive.
The Magistrate Judge did not commit clear error in reviewing
the affidavits submitted by counsel and the evidence regarding
prevailing rates in the community in awarding reasonable
attorneys’ fees.
B.

Reasonable Hours Expended

Plaintiff’s argument regarding the hours expended simply
repeats the same objections that were raised before the
Magistrate Judge.
The Magistrate Judge properly reduced the hours expended by

12

Attorney Bronster by one-half given the block-billed time for her
review of the Motion to Compel and the Motion for Summary
Judgment.
The Magistrate Judge did not clearly err in finding that the
remaining 16.6 hours billed among the multiple attorneys and the
paralegal were reasonable given the 73-page filing and the
overall complexity of the motion.
IV.

Motion For Sanctions
It is undisputed that Defendants State of Hawaii, Department

of Public Safety and Nolan Espinda did not timely comply with the
Magistrate Judge’s September 23, 2019 Order and that they failed
to produce the documents before October 4, 2019, as ordered by
the Magistrate Judge.
Instead, Defendants State of Hawaii, Department of Public
Safety and Nolan Espinda repeat their arguments about the
relevancy of the documents, which are unpersuasive.
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda also argue that Plaintiff did not meet and confer
with them before filing their October 11, 2019 Motion for
Sanctions.
Defendants’ counsel claims she did not know about the
Magistrate Judge’s September 23, 2019 Order until Plaintiff’s
counsel informed her of the Order at a meeting on October 8,

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2019.

Defendants’ counsel does not explain how she never learned

of the September 23, 2019 Order earlier, as she received service
of process through CM-ECF and the Order was also published on the
Docket on September 23, 2019.

She provides no explanation for

her failure to either receive notification of the Order or review
the Docket before October 8, 2019.
In any event, the Magistrate Judge properly found that the
Parties engaged in a meet and confer on October 8, 2019, as it is
undisputed that Plaintiff informed Defendants’s counsel about the
Court’s Order and discussed the documents required to be produced
pursuant to the September 23, 2019 Order.

The following day,

October 9, 2019, Plaintiff’s counsel provided Defendants’ counsel
with a copy of the Order and inquired about the documents again.
Defendants continued to fail to produce the documents.

Two days

later, on October 11, 2019, Plaintiff filed her Motion to Compel.
There was no clear error by the Magistrate Judge in finding
Plaintiff engaged in a good faith effort to limit the Court’s
involvement in the discovery dispute when Plaintiff informed
Defendants State of Hawaii, Department of Public Safety and Nolan
Espinda’s counsel on multiple occasions of the Court’s September
23, 2019 Order.

Plaintiff also informed Defendants’ counsel of

her requirements to comply with the Court’s September 23, 2019
Order, yet Defendants continued to ignore both the Plaintiff and
the Court’s Order until Plaintiff filed a Motion for Sanctions.

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CONCLUSION
Defendants State of Hawaii, Department of Public Safety and
Nolan Espinda’s Objection (ECF No. 209) is OVERRULED.
The Magistrate Judge’s November 26, 2019 Order (ECF No. 203)
is AFFIRMED.
The Court orders Defendants State of Hawaii, Department of
Public Safety and Nolan Espinda to pay $4,217.28 to Plaintiff no
later than Friday, February 21, 2020.
IT IS SO ORDERED.
DATED: February 4, 2020, Honolulu, Hawaii.

Elizabeth A. Mueller v. State of Hawaii, Department of Public
Safety; Freddie Carabbacan, in his individual capacity and
official capacity as Deputy Sheriff, Department of Public Safety,
State of Hawaii; Nolan Espinda, in his individual capacity and
official capacity as Director of the Department of Public Safety,
State of Hawaii; Doe Defendants 1-10, Civ. No. 17-00571 HG-WRP;
ORDER OVERRULING DEFENDANTS STATE OF HAWAII, DEPARTMENT OF PUBLIC
SAFETY AND NOLAN ESPINDA’S OBJECTIONS (ECF No. 209) AND AFFIRMING
THE MAGISTRATE JUDGE’S ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S REQUEST FOR ATTORNEYS’ FEES PURSUANT TO ORDER
GRANTING PLAINTIFF’S MOTION TO COMPEL AND GRANTING PLAINTIFF’S
MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH THIS COURT’S
ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION TO COMPEL DISCOVERY
FILED ON SEPTEMBER 23, 2019 (ECF No. 203)
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