Fulkerson v. Costco Wholesale Corporation et al

Filing 36

ORDER - Costco's Request for Sanctions (ECF No. 26 ) is granted. Costco shall recover attorney's fees in the amount of $1,575. Fulkerson shall pay $1,575 to Costco's counsel no later than sixty (60) days from the date of this order. Signed by Magistrate Judge Carla Baldwin on 1/7/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:20-cv-00207-MMD-CLB Document 36 Filed 01/07/21 Page 1 of 5

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HEATH VINCENT FULKERSON,
Plaintiff,

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v.

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3:20-cv-00207-MMD-CLB

ORDER

COSTCO WHOLESALE CORPORATION,
Defendant.

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On December 2, 2020, the court granted Defendant Costco Wholesale

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Corporation’s (“Costco”) motion to compel answers or documents in response to written

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discovery from Plaintiff Heath Vincent Fulkerson (“Fulkerson”). (See ECF Nos. 26, 33.)

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Costco also requested sanctions, and therefore the court directed Costco to file an

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itemized statement of attorney’s fees and costs incurred in the preparation and filing of

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the motion to compel. (ECF No. 33). Costco filed the itemized statement (ECF No. 34),

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but Fulkerson did not file any response or opposition, despite being given an opportunity

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to do so. For the following reasons, the court grants the request for sanctions.

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I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

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Proceeding pro se, Fulkerson filed his motion to proceed in forma pauperis and

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original complaint on April 6, 2020. (ECF Nos. 1, 1-1.) After the court issued a Report

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and Recommendation screening the original complaint, Fulkerson filed a motion to

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amend his complaint, along with a proposed first amended complaint (“FAC”) on June

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18, 2020. (See ECF Nos. 4, 5) Pursuant to 28 U.S.C. § 1915(e)(2), the court screened

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Fulkerson’s FAC, allowing Fulkerson to proceed with a negligence claim for an alleged

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slip-and-fall incident against Defendant Costco. (See ECF Nos. 7, 8.)

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Fulkerson’s FAC asserts a single cause of action for negligence against Costco

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arising out of an alleged personal injury that occurred in the Reno, Nevada Costco

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warehouse on February 6, 2020. (ECF No. 8 at 1-2.) Fulkerson alleges that he slipped-

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and-fell on broken eggs while pushing a shopping cart with his son. (Id.) Fulkerson

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claims the spill had been mentioned to Costco staff prior to the incident. (Id.) Fulkerson

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alleges the injury caused his qualify of life to dimmish significantly, including interactions

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with his family and his ability to pursue his hobbies. (Id.) Further, Fulkerson claims he

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has had two surgeries to repair damage to his left foot from the incident, the first on

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February 18, 2020 and the second on May 1, 2020. (Id.) Fulkerson seeks in excess of

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$720,000 in damages. (Id.)

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On July 28, 2020, Costco filed its answer to the FAC, wherein it denied most of

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the allegations in the FAC, as well as asserted various affirmative defenses. (ECF No.

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10.) The same day, Fulkerson filed a motion to dismiss Costco’s answer (ECF No. 13),

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asserting that Costco’s answer should be dismissed as Fulkerson has “an admission

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from the defendant, Costco’s employees that they were at fault for the injuries that

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occurred on February 6, 2020.” (ECF No. 13 at 1.)

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On November 5, 2020 Costco filed a motion to compel and request for sanctions.

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(ECF No. 26.) Fulkerson did not oppose or otherwise respond directly to the motion, but

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instead filed a motion for immediate injunction (ECF No. 27) and motion for sanctions

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(ECF No. 28) against Costco. The injunction sought to remove Costco’s counsel and to

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“quash any motion filed by the defense.” (ECF No. 27 at 1.) Fulkerson sought sanctions

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“against the defense for wasted time and energy providing the information that defense

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claims to have not received.” (ECF No. 28 at 1.)

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On November 19, 2020, the District Court entered an order denying Fulkerson’s

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motion to dismiss Costco’s answer, denying the motion for injunction, and denying the

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motion for sanctions. (ECF No. 31.) The Court reasoned that Costco is entitled to file an

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answer and Fulkerson’s Injunction and Sanctions motions contained an insufficient legal

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or factual basis to grant the motions. (Id.) The Court also specifically noted that “Costco’s

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counsel has seemingly engaged in the ordinary conduct of assisting with Costco’s

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defense of this lawsuit.” (Id. at 2.)
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On December 2, 2020, the court granted Costco’s motion to compel for good

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cause, and as unopposed under Local Rule 7-2(d), and directed Costco to file an

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itemized statement of attorney’s fees and costs incurred in the preparation of the motion

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to compel. (ECF No. 33.) Costco filed their itemized statement on December 3, 2020.

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(ECF No. 34.) The court also directed Fulkerson to file and serve an opposition to the

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itemization of fees by December 28, 2020, (ECF No. 33), which Fulkerson failed to do.

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Having granted Costco’s motion to compel, and having given Fulkerson an

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opportunity to respond, the court finds that pursuant to Fed.R.Civ.P. 37(a)(5)(A), an

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award of attorney’s fees is appropriate. The court now turns to the calculation of the

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fees.

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II.

LEGAL STANDARDS

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Under Fed. R. Civ. P. 37(a)(5)(A), if a motion to compel is granted, “the court

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must, after giving an opportunity to be heard, require the party or deponent whose

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conduct necessitated the motion, the party or attorney advising that conduct, or both to

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pay the movant’s reasonable expenses incurred in making the motion, including

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attorney’s fees.”

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Reasonable attorney's fees are generally calculated based on the traditional

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“lodestar” method. Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 978 (9th Cir.

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2008). Under the lodestar method, the court determines a reasonable fee by multiplying

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

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rate.” See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar figure is

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presumptively reasonable. Cunningham v. County of Los Angeles, 879 F.2d 481, 488

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(9th Cir. 1988).

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The court “has a great deal of discretion in determining the reasonableness of the

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fee and, as a general rule, [an appellate court] will defer to its determination ... regarding

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the reasonableness of the hours claimed.” Prison Legal News v. Schwarzenegger, 608

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F.3d 446, 453 (9th Cir. 2010) (quoting Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th

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Cir. 1993). In reviewing the hours claimed, the court may exclude hours related to
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overstaffing, duplication, and excessiveness, or that are otherwise unnecessary. See,

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e.g., Hensley, 461 U.S. at 433 (“Where the documentation of hours is inadequate, the

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[court] may reduce the award accordingly”); see also Cruz v. Alhambra School Dist., 601

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F.Supp.2d 1183, 1191 (C.D.Cal. 2009) (“the Court must eliminate from the lodestar time

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that was unreasonably, unnecessarily, or inefficiently” spent).

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III.

DISCUSSION

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A. Reasonable Hours

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According to defense counsel’s itemized statement of attorney’s fees and costs,

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defense counsel spent 8 hours attempting to meet and confer with Fulkerson, drafting

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letters and emails to Fulkerson “to motivate him to properly respond to the discovery

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requests,” numerous phone calls, as well as preparing the motion to compel, exhibits,

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and the Affidavit of Counsel.

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requesting fees for 7 hours of work. (Id. at 4.) Thus, the court finds the request by

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defense counsel for 7 hours trying to obtain discovery responses and preparing the

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motion to compel to be reasonable in light of the length and complexity of the motion, as

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well as the amount of legal research required.

(ECF No. 34.)

However, defense counsel is only

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B. Hourly Rate

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The next step in calculating the lodestar is to determine the attorney's rates

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“calculated according to the prevailing market rates in the relevant community,” taking

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into account the rates for “similar services by lawyers of reasonably comparable skill,

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experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895–96 & n. 11 (1984).

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“Affidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the

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community, and rate determinations in other cases, particularly those setting a rate for

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the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.” United

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Steelworks of Am. v. Phelps Dodge Corp., 896 F.3d 403, 407 (9th Cir. 1990).

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Case law reflects that the upper range of the prevailing rates in this District is

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$450 for partners and $250 for experienced associates. See, e.g., Topolewski v.

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Blyschak, 2018 WL 1245504, at *4 & n.48 (D. Nev. Mar. 8, 2018). Mr. Sullivan and Ms.
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Winston each charge an hourly rate of $225. (ECF No. 34 at 4.) The court finds this to be

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a reasonable hourly rate for Mr. Sullivan and Ms. Winston.

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C. Fees to be Awarded

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In light of the reasonable hours and rates determined above, the court hereby

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calculates the lodestar as follows: 7 hours x $225 = $1,575.

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IV.

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CONCLUSION
IT IS THEREFORE ORDERED that Costco’s request for sanctions (ECF No. 26)

is GRANTED; and,

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IT IS FURTHER ORDERED that Costco shall recover attorney’s fees in the

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amount of $1,575. Fulkerson shall pay $1,575 to Costco’s counsel no later than sixty

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(60) days from the date of this order.

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IT IS SO ORDERED.
DATE: January 7, 2021.

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______________________________________
UNITED STATES MAGISTRATE JUDGE

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