Evans et al v. Skolnik et al

Filing 348

ORDER granting in part and denying in part 333 Motion for Attorney Fees. Costs awarded in amount of $3604.60, but attorney fees are denied. Signed by Chief Judge Robert C. Jones on 11/26/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DONALD YORK EVANS et al.,

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This is a prisoner civil rights case arising out of alleged illegal electronic eavesdropping

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Plaintiffs,
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vs.
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HOWARD SKOLNIK et al.,
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Defendants.

3:08-cv-00353-RCJ-VPC
ORDER

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of prisoners’ telephone calls with their attorneys. Pending before the Court is a Motion for

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Attorney’s Fees and Costs (ECF No. 333). For the reasons given herein, the Court grants the

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motion as to costs but denies it as to attorney’s fees.

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I.

FACTS AND PROCEDURAL HISTORY

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Plaintiffs Donald York Evans and John Witherow filed the Complaint in June 2008,

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alleging that Defendants illegally intercepted privileged communications between Attorney

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Evans and his client, Withrow, who was during the relevant time period incarcerated at Nevada

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State Prison (“NSP”). (See generally Compl., June 26, 2008, ECF No. 2).1 Plaintiffs listed as

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Defendants Inmate Calling Solutions (“ICS”), Howard Skolnik, Don Helling, William Donat,

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Brian Henley, and L. Baker. (See id.). The Nevada Department of Corrections (“NDOC”) and

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ICS stipulated not to intercept any attorney–client communications between Evans and Witherow

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Witherow has since been released and currently resides in Michigan.

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or between Evans and any of his other clients. (See NDOC/ICS Stip., Dec. 1, 2008, ECF No. 29).

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Plaintiffs filed the First Amended Complaint (“FAC”), adding Embarq and Global

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Tel*Link (“GTL”) as Defendants. (See First Am. Compl., Dec. 19, 2008, ECF No. 33). Evans

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stipulated to dismiss his claims against ICS. (See Evans Stip., Mar. 25, 2009, ECF No. 62).

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Witherow filed the Second Amended Complaint (“SAC”).2 The SAC listed the following

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Defendants: ICS, Embarq, GTL, Skolnik, Helling, Henley, Lea Baker, and I. Connally.

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(See Second Am. Compl., May 5, 2009, ECF No. 80). The SAC listed 116 causes of action. The

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first and second causes of action were, like the first and second claims in the Complaint and

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FAC, for declaratory and injunctive relief, respectively. (See id. 14–15). The third through forty-

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ninth causes of action were brought pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983,

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and the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2520, for alleged

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violations of federal rights guaranteed by the Fourth Amendment and the ECPA, 18 U.S.C.

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§ 2511, by Baker’s interception of attorney–client communications between Witherow and Evans

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between May 8 and December 27, 2007. (See id. 15–18). The fiftieth cause of action was a

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similar claim based upon Baker’s interception of attorney–client communications between

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Witherow and Attorney Picker (one of Witherow’s and Evans’s former attorneys in this case) on

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September 12, 2007. (See id. 18–19). The fifty-first through fifty-eighth causes of action were

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similar claims based upon Baker’s interception of attorney–client communications between

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Witherow and Attorney Hager (who has not appeared in the present case) between October 9 and

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December 28, 2007. (See id. 20–21). The fifty-ninth through ninety-third causes of action were

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similar claims based upon Connally’s interception of attorney–client communications between

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Witherow and Evans between January 2 and July 25, 2008. (See id. 21–24). The ninety-fourth

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through one-hundred-and-sixth causes of action were similar claims based upon Connally’s

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Witherow filed the SAC in pro se. The Court treated the SAC as applying only to
Witherow and treated the FAC as applying to Evans.
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interception of attorney–client communications between Witherow and Attorney Picker between

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February 6 and July 18, 2008. (See id. 24–26). The one-hundred-and-seventh through one-

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hundred-and-fourteenth causes of action were similar claims based upon Connally’s interception

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of attorney–client communications between Witherow and Hager between January 30 and July

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30, 2008. (See id. 27–28). The one-hundred-and-fifteenth cause of action was a failure-to-train

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claim against Skolnik based upon his alleged failure to adopt policies and procedures that would

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have prevented the alleged violations by Baker and Connally. (See id. 28–30). The one-hundred-

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and-sixteenth claim was a respondeat superior claim against Henley, Donat,3 and Helling for

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failing to adequately investigate Witherow’s grievance(s) related to the alleged illegal

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interceptions. (See id. 30–31).
Embarq, ICS, and GTL each separately moved to dismiss. Witherow opposed all of the

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motions, but Evans failed to oppose any of them, and the magistrate judge issued a Report and

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Recommendation (“R&R”), recommending that the Court grant the motions as against Evans

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because he failed to oppose them4 and as against Witherow because he had not sufficiently

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alleged that movants were state actors or that they intentionally intercepted his communications.

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(See R&R, Oct. 2, 2009, ECF No. 117). The Court adopted the R&R and granted the motions to

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dismiss, (see Order, Nov. 5, 2009, ECF No. 122), later clarifying that Witherow did not have

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leave to amend, (see Order, Dec. 23, 2009, ECF No. 134). At that stage, the remaining claims

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were as follows: (1) Witherow had 116 claims under the SAC against Skolnik, Helling, Henley,

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Donat, Baker, and Connally; and (2) Evans had three claims under the FAC against Skolnik,

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Helling, Henley, Donat, and Baker.

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Although listed in this cause of action, (see id. ¶ 61, at 30), and under the “Parties”
section of the SAC, (see id. ¶ 10, at 4), Donat is not listed in the caption of the SAC, (see id. 1).
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ICS’s motion was moot as against Evans, because Evans had already stipulated to
dismiss his claims against ICS. (See Evans Stip.).
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The magistrate judge later issued a thirty-six-page R&R as to Witherow’s motion to

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amend to name various existing individual Defendants under existing claims that theretofore had

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implicated only other individual Defendants, Witherow’s motion for partial summary judgment,

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and Defendants’ two motions for summary judgment as against the FAC (Evans’s claims) and

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the SAC (Witherow’s claims), respectively. (See R&R, July 29, 2011, ECF No. 222). The

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magistrate judge recommended denying Witherow’s motions and granting Defendants’ motions,

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except as to Witherow’s claim for illegal initial screening under the ECPA (Title III of the

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Omnibus Crime Control and Safe Streets Act (“OCCSSA”)). The magistrate judge found that

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Witherow had exhausted his administrative remedies, that Evans had no standing to assert

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constitutional violations of the attorney–client privilege apart from Witherow, that Evans had no

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standing to assert claims based upon failure to investigate Witherow’s grievance(s), that

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Plaintiffs had no constitutional claims because it was clear they knew the calls were being

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monitored (negating any expectation of privacy and destroying the attorney–client privilege), that

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Evans’s remaining possible claim under the ECPA against Baker was futile because he was

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prevented by previous discovery sanctions against him from presenting evidence sufficient to

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prove his claims, that Witherow’s claims under the ECPA were precluded insofar as they alleged

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initial screening violations because it was clear he received the requisite notice, that there

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remained genuine issues of material fact whether Defendants engaged in extended monitoring of

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Witherow’s calls in violation of the ECPA, that no liberty interest had been violated supporting a

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due process violation, and that no claims lied in this case for failure to respond to grievances or

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for supervisory liability. (See id. 10–33). The magistrate judge noted that Plaintiff was no longer

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entitled to injunctive relief, but that he could seek statutory and punitive damages under the

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ECPA. (See id. 33–34). The Hon. Gloria M. Navarro adopted the R&R. (See Order, Mar. 7,

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2012, ECF No. 232).

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The case was then reassigned to this Court for trial. The jury returned a verdict for
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Defendants, who have now asked the Court for attorney’s fees and costs.

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II.

DISCUSSION

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A.

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“[C]osts—other than attorney’s fees—should be allowed to the prevailing party.” Fed. R.

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Costs

Civ. P. 54(d)(1). Defendants ask for $3604.60 in costs. Plaintiff objects.
First, Plaintiff objects to $157.30 for a transcript of a July 25, 2013 hearing because

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“these transcripts were used solely for counsel’s own use” and not requested by the Court or

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pursuant to stipulation. The Court rejects the objection, as the costs statute does not make any

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such distinction. See 28 U.S.C. § 1920(b). So long as the ordering of the transcripts was

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reasonably necessary, the cost thereof is taxable. The transcript was on a hearing before the

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magistrate judge to exclude evidence under Rule 37 that Defendants required to prepare their

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Rule 72(a) motion to this Court.

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Second, Plaintiff objects to $1290.45 for one original and one certified copy of the

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transcript of Withrow’s deposition, arguing that Local Rule 54-4 permits the taxation of “either

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the original or a copy, but not both.” $1090.45 was for the documents. $200 was for per diem,

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presumably for the reporter. The Court rejects the objection. It is not clear that the copy

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contained an additional charge. Most of the charge was surely for the reporter’s services, not for

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printing fees. The cost of printing the extra copy was surely minimal, and the extra copy may

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have been included by the company as a rule, seeing as the charge for the original and one

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certified copy of the transcript were listed as a single charge, with the per diem listed separately.

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The Court may reconsider if Plaintiff can show that the extra copy was gratuitous as well as the

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amount that would have been saved had Defendants only obtained one copy.

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Third, Plaintiff objects to $864.51 in witness fees for Mr. Donat for car rental, milage,

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meals, and lodging, as well as $35 for the service of his subpoena. Fees for witnesses are

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permitted. See 28 U.S.C. § 1920(c). Plaintiff admits Mr. Donat lives in Sacramento, California
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but argues that because Mr. Donat resides over 100 miles form the Reno courthouse, fees relating

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to him should be denied under Rule 45. Rule 45 lists territorial limits of the power to subpoena a

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witness. At most, this rule is relevant in the present context to the subpoena costs. It is not

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relevant to the actual witness costs. The inability to compel witness attendance by subpoena has

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nothing to do with whether a litigant may recover the costs related to a witness who does in fact

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appear. The Court denies this objection.

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Fourth, Plaintiff objects to $1137.35 in witness fees for Lea Baker for car rental, milage,
meals, and lodging. The Court finds the costs reasonably necessary.
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Attorney’s Fees

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Unlike costs, which “should be allowed to the prevailing party,” under Rule 54(d),

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attorney’s fees are only available if separately provided for by “statute, rule, or other grounds . . .

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.” See Fed. R. Civ. P. 54(d)(2)(B)(ii). Defendants ask for fees based upon Federal Rule 68,

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Nevada Rule 68, and Nevada Revised Statute (“NRS”) section 17.115.

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Federal law governs attorney’s fees in federal-question cases such as the present one. See

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Disability Law Ctr. of Alaska, Inc. v. Anchorage Sch. Dist., 581 F.3d 936, 940 (9th Cir. 2009)

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(citing Bass v. First Pac. Networks, Inc., 219 F.3d 1052, 1055 (9th Cir. 2000)) (“The district

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court awarded attorney fees to the school district pursuant to Rule 82 of the Alaska Rules of Civil

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Procedure, which entitles the prevailing party in a civil case to attorney fees. This was error. In a

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pure federal question case brought in federal court, federal law governs attorney fees.”).

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Therefore, Federal Rule 68 is the only appropriately invoked provision that might provide a basis

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for fees in this case.

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Although Rule 68 provides only for “costs” by its text, the Supreme Court has interpreted

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the rule to include all costs properly awardable under the relevant substantive statute, including

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attorneys’ fees where included in the statute’s definition of “costs.” Marek v. Chesny, 473 U.S. 1,

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9 (1985). Although Defendants do not explicitly invoke it, that underlying substantive statute in
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the present case would be 42 U.S.C. § 1988(b), which provides for “a reasonable attorney’s fee

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as part of the costs.” Therefore, fees and costs would be mandatory under Rule 68 in this case if

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the rule were otherwise satisfied. But Rule 68 is clearly not satisfied, because although Plaintiff

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did not receive a judgment greater than the offer he rejected, he obtained no judgment at all. See

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Delta Air Lines v. August, 450 U.S. 346, 352 (1981) (“In sum . . . it is clear that [Federal Rule

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68] applies only to offers made by the defendant and only to judgments obtained by the plaintiff.

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It therefore is simply inapplicable to this case because it was the defendant that obtained the

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judgment.”). In diversity cases, this fact pattern results in the application of Nevada Rule 68 and

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NRS section 17.115, but this is a pure federal-question case, so state law is inapplicable, see

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Disability Law Ctr., 581 F.3d at 940.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion for Attorney’s Fees (ECF No. 333) is

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GRANTED IN PART and DENIED IN PART. Costs are awarded in the amount of $3604.60,

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but attorney’s fees are denied.

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IT IS SO ORDERED.

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Dated this 14th day of November, 2013.
Dated this 26th day of November, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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