Feldman v. Pokertek, Inc.

Filing 54

ORDER. IT IS ORDERED that defendant PokerTek shall pay plaintiffs reasonable expenses, including attorneys fees, in the amount of $15,000 within fourteen days from the entry of this order. Signed by Magistrate Judge Cam Ferenbach on 12/1/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARVIN ROY FELDMAN,
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Plaintiff,
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v.
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POKERTEK INC.,
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Defendants.
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2:09-cv-01598-JCM -VCF
ORDER

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Before the court is plaintiff Feldman’s Supplement To Plaintiff’s Motion To Compel Production

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and For Sanctions, Pursuant to Court’s Order. (#51). Defendant PokerTek Inc. filed an Objection

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thereto. (#53).

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On September 29, 2011, the court issued an order on plaintiff Feldman’s motion to compel and

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for sanctions. (#50). Magistrate Judge Leavitt ordered defendant to provide plaintiff with “adequate

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responses/documents relating to plaintiff’s interrogatory No. 22 and his first, second, and third requests

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for production of documents...” Id. Plaintiff sought an award of $15,000 in attorney’s fees as a result

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of defendant’s actions, but did not provide support for the requested amount. (#44). Due to defendant’s

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“disregard for court orders and continuous failure to meaningfully participate in discovery,” the court

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held that “significant monetary sanctions are in order.” (#50). Judge Leavitt ordered plaintiff to file

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an affidavit “justifying the monetary sanctions sought” and demonstrating the “reasonable expenses,

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including attorney’s fees,” that were incurred due to defendant’s failure to disclose the requested

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documents.” (#50)(emphasis added).

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On October 13, 2011, plaintiff submitted a supplement (#51) to his motion and an affidavit of

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counsel (#51 Exhibit A). In the affidavit, counsel Kenneth E. Hogan asserts that “Gordon Silver’s

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business records indicates (sic) that PokerTek has caused Mr. Feldman to incur $68,375.00 in

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unnecessary fees and costs in this action, all related to discovery abuses.” (#51 Exhibit A). Attached

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to the affidavit, is a seven page itemized list of these fees. (#51 Exhibit 1A). Mr. Hogan also contends

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that “those fees specifically related to PokerTek’s bad faith conduct in the course of discovery..., as

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segregated from the cumulative discovery billings set forth..., are in the sum of $33,242.20.” (#51

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Exhibit A). Within the body of the affidavit, counsel provides the court with a four page itemized list

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to support these fees. Id. Plaintiff now requests that this court impose sanctions in an amount between

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$33,242.20 and $68,375.00. Id.

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In defendant PokerTek’s objection to the affidavit, it asserts that a “casual review of the affidavit

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reveals that most of the request is for work that [plaintiff’s] attorney did that was unrelated to the motion

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to compel,” and that the request is unreasonable, as counsel is seeking fees “4 ½ times more” than that

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permitted in the court’s order. (#53). Defendant lists several fees that it disputes, including fees for

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preparing and responding to discovery requests, preparing subpoenas to third parties, preparing for and

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taking four depositions, responding to a motion for summary judgment, drafting a pretrial order and

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stipulation, reviewing the file to prepare the trial brief, reviewing spreadsheets and bank records,

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responding to PokerTek’s motion to strike, and trial preparation. Id. Defendant argues that seeking

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payment for counsel’s “garden variety legal fees” is inappropriate. Id.

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Defendant’s objection (#53) was filed on October 21, 2011, and, to date, plaintiff has not filed

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a response addressing defendant’s concerns. In Judge Leavitt’s order (#50), he specifically ordered

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plaintiff to provide an affidavit “justifying the monetary sanctions sought,” which was $15,000. The

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court finds that plaintiff’s counsel’s affidavit (#51) supports an award of $15,000.

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Accordingly, and for good cause shown,

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IT IS ORDERED that defendant PokerTek shall pay plaintiff’s “reasonable expenses, including

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attorney’s fees,” in the amount of $15,000 within fourteen days from the entry of this order.
DATED this 1st day of December, 2011.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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