Gilbert v. Doctor's Choice Modesto LLC

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DARREN GILBERT, Case No. 1:21-cv-00690-AWI-SAB

12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL AND ORDERING 13 v. DEFENDANT TO SERVE RESPONSES AND RESPONSIVE DOCUMENTS WITHIN 14 DOCTOR’S CHOICE MODESTO, LLC., et TEN DAYS al., 15 ORDER VACATING APRIL 27, 2022 Defendants. HEARING 16 (ECF No. 47) 17 18 I. 19 INTRODUCTION 20 Currently before the Court is Plaintiff Darren Gilbert’s motion to compel Defendant 21 Doctor’s Choice Modesto, LLC,1 to provide responses to interrogatories and document requests 22 that were served on Defendant on March 1, 2022. (Pl.’s Mot. Compel. (“Mot.”), ECF No. 47.) 23 Defendant did not file an opposition to the motion and the deadline to do so has now expired. 24 Accordingly, the Court finds this matter suitable for decision without oral argument and the 25 parties will not be required to appear on April 27, 2022. See Local Rule 230(g). For the 26 reasons explained herein, Plaintiff’s motion shall be granted and Defendant shall provide,

27 1 While there are multiple Defendants, Doctor’s Choice Modesto, LLC, is the only Defendant subject to the motion to compel, and when referring to the “Defendant” herein, the Court only intends to reference Defendant Doctor’s 1 within ten days of entry of this order, written responses to the requests for production, 2 responsive documents, and written responses to the interrogatories without objections. 3 II. 4 PROCEDURAL BACKGROUND 5 Plaintiff filed this action on April 23, 2021. (ECF No. 1.) A scheduling order issued on 6 October 5, 2021, which has been modified one time on April 14, 2022. (ECF Nos. 27, 48.) The 7 nonexpert discovery deadline currently is set to expire on July 20, 2022. (ECF No. 48.) On 8 April 13, 2022, Plaintiff filed the instant motion to compel. (ECF No. 47.) The motion was set 9 for hearing on April 27, 2022. (Id.) No opposition to the motion was filed by Defendant. 10 III. 11 LEGAL STANDARD 12 Rule 26 of the Federal Rules of Civil Procedure allows a party to obtain discovery 13 “regarding any nonprivileged matter that is relevant to any party’s claim or defense and 14 proportional to the needs of the case, considering the importance of the issues at stake in the 15 action, the amount in controversy, the parties’ relative access to relevant information, the 16 parties’ resources, the importance of the discovery in resolving the issues, and whether the 17 burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 18 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be 19 discoverable.” Fed. R. Civ. P. 26(b)(1). “Evidence is relevant if: (a) it has any tendency to 20 make a fact more or less probable than it would be without the evidence; and (b) the fact is of 21 consequence in determining the action.” Fed. R. Evid. 401. 22 Rule 33 of the Federal Rules of Civil Procedure authorizes a party to serve 23 interrogatories on another party. “Each interrogatory must, to the extent it is not objected to, be 24 answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds 25 for objecting to an interrogatory must be stated with specificity,” and “[a]ny ground not stated 26 in a timely objection is waived unless the court, for good cause, excuses the failure. Fed. R. 27 Civ. P. 33(b)(4). 1 requests, provides that 2 A party may serve on any other party a request within the scope of Rule 26(b): 3 (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the 4 responding party's possession, custody, or control: (A) any designated documents or electronically stored 5 information--including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data 6 compilations--stored in any medium from which information can be obtained either directly or, if necessary, after translation by the 7 responding party into a reasonably usable form. . . .

8 Fed. R. Civ. P. 34(a). “The party to whom the request is directed must respond in writing 9 within 30 days after being served. . . .” Fed. R. Civ. P. 34(b)(2)(B). A party’s response “may 10 state an objection to a requested form for producing electronically stored information. If the 11 responding party objects to a requested form--or if no form was specified in the request--the 12 party must state the form or forms it intends to use.” Fed. R. Civ. P. 34(b)(2)(D). 13 Rule 37 of the Federal Rules of Civil Procedure provides that a party may move for an 14 order compelling disclosure or discovery. Fed. R. Civ. P. 37(a)(1). “A party seeking discovery 15 may move for an order compelling an answer, designation, production, or inspection” where “(i) 16 a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other 17 entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an 18 interrogatory submitted under Rule 33; or (iv) a party fails to produce documents or fails to 19 respond that inspection will be permitted -- or fails to permit inspection -- as requested under 20 Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). The party opposing the discovery bears the burden of 21 resisting disclosure. Bryant v. Armstrong, 285 F.R.D. 596, 600 (S.D. Cal. 2012). 22 If a motion to compel discovery is granted, the Court must order the “party or deponent 23 whose conduct necessitated the motion, the party or attorney advising that conduct, or both to 24 pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees” 25 unless: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure 26 or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection 27 was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. 1 R. Civ. P. 37(a)(5)(A). If the motion is denied, the court must “require the movant, the attorney 2 filing the motion, or both to pay the party or deponent who opposed the motion its reasonable 3 expenses incurred in opposing the motion, including attorney’s fees,” however the court “must 4 not order this payment if the motion was substantially justified or other circumstances make an 5 award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Where the motion is granted in part 6 and denied in part, the court “may, after giving an opportunity to be heard, apportion the 7 reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). 8 IV. 9 DISCUSSION 10 A. The Court Shall Grant Plaintiff’s Motion to Compel 11 On March 1, 2022, Plaintiff propounded interrogatories and requests for production of 12 documents on Defendant. (Mem. Supp. Mot. Compel. (“Mem.”) 1, ECF No. 47-1; Decl. Tanya 13 E. Moore (“Moore Decl.”) ¶¶ 2-3, Exs. A, B.) Responses were due on April 4, 2022. (Id.) No 14 responses were received. (Moore Decl. ¶ 4.) Plaintiff’s counsel has met and conferred to 15 attempt to receive responses, but has been unsuccessful. (Moore Decl. ¶¶ 5-6.) Plaintiff 16 requests an order requiring Defendant to immediately provide discovery responses, without 17 objections, and for sanctions in the form of costs and attorneys’ fees for the failure to provide 18 discovery responses. (Mem. 2.) 19 Plaintiff accurately contends they appropriately brought this motion pursuant to Local 20 Rule 251(e), which allows for the filing of a motion to compel outside of the normal notice 21 period for discovery motions, and without the need for a joint statement. L.R. 251(e). Pursuant 22 to the rule, Defendant, as the responding party, was required to file a response to the motion not 23 later than seven (7) days before the hearing date. Id. Thus, because this matter was set for 24 hearing on April 27, 2022, a response was due by April 20, 2022. Defendant failed to file a 25 response, nor any other filing with the Court regarding the motion. Accordingly, the Court 26 considers the motion to compel to be unopposed. 27 The Court finds Plaintiff’s factual proffers to be reasonable and supported by the 1 Accordingly, given the fact that Defendant has presented no opposition to the factual or legal 2 contentions in Plaintiff’s moving papers, the Court shall grant Plaintiff’s motion to compel, 3 order Defendant to provide responses and documents without objection, and award Plaintiff 4 reasonable attorneys’ fees and costs incurred in the bringing of this motion. See Fed. R. Civ. P. 5 33(b)(3)-(4); Fed. R. Civ. P. 34; Fed. R. Civ. P. 37; Bryant, 285 F.R.D. at 600; Fed. R. Civ. P. 6 37(a)(5)(A)-(C). 7 The Court now turns to consideration of an appropriate award of costs and fees. 8 B. The Court Shall Grant Plaintiff’s Requested Attorneys’ Fee Award 9 Given the lack of any opposition or response from the Defendant, and the fact Plaintiff 10 did meet and confer with the Defendant, the Court does not find “the movant filed the motion 11 before attempting in good faith to obtain the disclosure or discovery without court action,” nor 12 that “the opposing party’s nondisclosure, response, or objection was substantially justified,” nor 13 that “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). 14 Having determined that an award of reasonable expenses is warranted, the Court now turns to 15 calculate appropriate and reasonable attorneys’ fees. 16 “[U]nder federal fee shifting statutes the lodestar approach is the guiding light in 17 determining a reasonable fee.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 18 1176 (9th Cir. 2010) (internal punctuation and citations omitted); see also Sanchez Y Martin, 19 S.A. de C.V. v. Dos Amigos, Inc., No. 17CV1943-LAB-LL, 2019 WL 3769191 (S.D. Cal. Aug. 20 9, 2019) (applying lodestar to calculate reasonable attorneys’ fees under Rule 37)(b)(2)(C) for 21 failure to comply with discovery order). The Ninth Circuit has explained the lodestar approach 22 as follows:

23 The lodestar/multiplier approach has two parts. First a court determines the lodestar amount by multiplying the number of hours reasonably expended on the litigation by 24 a reasonable hourly rate. The party seeking an award of fees must submit evidence supporting the hours worked and the rates claimed. A district court should exclude 25 from the lodestar amount hours that are not reasonably expended because they are excessive, redundant, or otherwise unnecessary. Second, a court may adjust the 26 lodestar upward or downward using a multiplier based on factors not subsumed in the initial calculation of the lodestar. The lodestar amount is presumptively the 27 reasonable fee amount, and thus a multiplier may be used to adjust the lodestar amount upward or downward only in rare and exceptional cases, supported by both 1 lodestar amount is unreasonably low or unreasonably high. 2 Van Gerwin v. Guarantee Mut. Life Co., 214 F.3d 1041,1045 (9th Cir. 2000) (internal citations 3 and punctuation omitted). 4 Under the lodestar method, the court will first determine the appropriate hourly rate for 5 the work performed, and that amount is then multiplied by the number of hours properly 6 expended in performing the work. Antoninetti, 643 F.3d at 1176. The district court has the 7 discretion to make adjustments to the number of hours claimed or to the lodestar, but is required 8 to provide a clear but concise reason for the fee award. Gates v. Deukmejian, 987 F.2d 1392, 9 1398 (9th Cir. 1992). The lodestar amount is to be determined based upon the prevailing 10 market rate in the relevant community. Blum v. Stenson, 465 U.S. 886, 896 (1984). 11 1. Reasonable Hourly Rate 12 The lodestar amount is to be determined based upon the prevailing market rate in the 13 relevant community, Blum, 465 U.S. at 896 (1984), which in this matter is the Fresno Division 14 of the Eastern District of California. “To inform and assist the court in the exercise of its 15 discretion, the burden is on the fee applicant to produce satisfactory evidence—in addition to 16 the attorney’s own affidavits—that the requested rates are in line with those prevailing in the 17 community for similar services by lawyers of reasonably comparable skill, experience and 18 reputation.” Blum, 465 U.S. at 895 n.11. “Though affidavits provide satisfactory evidence of 19 the prevailing market rate, they are not conclusive . . . [and] Courts should rely on their own 20 familiarity with the market . . . bas[ing] their rates on the standards of the legal community in 21 which the court sits.” California Ass’n of Rural Health Clinics v. Douglas, No. 2:10-CV- 22 00759-TLN, 2014 WL 5797154, at *3, n.7 (E.D. Cal. Nov. 6, 2014). 23 Plaintiff states that although “significantly outdated, the Eastern District has previously 24 found a reasonable hourly rate for attorney Tanya E. Moore of $300 per hour (although her 25 regular billing rate is now $650 per hour), and $115 per hour for paralegal Whitney Law (who 26 regularly bills at $195 per hour).” (Mem. 3, citing Trujillo v. Singh, No. 1:16-cv-01640-LJO- 27 EPG, 2017 U.S. Dist. LEXIS 70092, at *8 (E.D. Cal. May 8, 2017).) Therefore, for the purposes of this motion only, Plaintiff is seeking only a rate of $300 per hour for Ms. Moore 1 and $115 per hour for Ms. Law. 2 Indeed, the Court has recently reaffirmed the reasonableness of these requested rates as 3 to attorney Moore and her paralegals. Trujillo v. Harsarb, No. 121CV00342NONESAB, 2021 4 WL 3783388, at *14 (E.D. Cal. Aug. 26, 2021) (noting the Court had “already found $300.00 5 per hour to be a reasonable rate for counsel Moore [and that] . . . in the context of cases alleging 6 violations of the ADA, courts in this district have awarded fees ranging from $250.00 to 7 $325.00 per hour within recent years . . . [and] also recommends that Plaintiff receive the 8 requested $115.00 per hour for the services of the paralegals, as the undersigned has previously 9 found to be reasonable.”), report and recommendation adopted in part sub nom. Trujillo v. 10 Harsarb, Inc., No. 121CV00342NONESAB, 2021 WL 4804249 (E.D. Cal. Oct. 14, 2021). 11 Accordingly, the Court finds the requested rates to be reasonable. 12 2. Reasonable Number of Hours 13 Attorney Moore proffers to have spent a total of 1.4 hours in the preparation of this 14 motion, including attempts to meet and confer with Defendant. (Moore Decl. ¶ 7.) Plaintiff 15 proffers that paralegal Law has spent a total of 3.1 hours in attempts to obtain responses from 16 Doctor’s Choice, researching applicable federal and local rules, and drafting this motion and the 17 supporting documents. (Moore Decl. ¶ 8.) Plaintiff therefore requests a total of $776.50 incurred 18 through the filing of this motion. Given the hearing is now being taken off calendar, the Court 19 need not consider additional amounts that would have been incurred in preparing any reply and 20 appearing at the hearing. (See Moore Decl. ¶ 10.) 21 While the Court is somewhat skeptical of whether any time researching the applicable 22 federal and local rules was necessary given the generally boiler-plate form of the filing and the 23 amount of litigation that the Plaintiff’s law firm has filed in this Court, the Court does not find the 24 proffered hours to be outside the bounds of reasonableness. Accordingly, the Court finds the 25 proffered amount of hours expended to be reasonable. 26 3. Reasonable Attorneys’ Fee Award 27 The Court finds that: (1) counsel Moore reasonably expended 1.4 hours at a reasonable 1 | expended 3.1 hours at a reasonable rate of $115.00 per hour, for a total of $356.50. Accordingly, 2 | the Court finds that Plaintiff shall be awarded attorneys’ fees in the amount of $776.50. 3 V. 4 ORDER 5 Based on the foregoing, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion to compel (ECF No. 47) is GRANTED; 7 2. The hearing on Plaintiff’s motion to compel set for April 27, 2022, at 10:00 a.m. 8 in Courtroom 9, is HEREBY VACATED; 9 3. Within ten (10) days of entry of this order, Defendant Doctor’s Choice Modesto, 10 LLC, shall provide written responses to Plaintiff's interrogatories, set one, served 11 on March 1, 2022, without objections; 12 4. Within ten (10) days of entry of this order, Defendant Doctor’s Choice Modesto, 13 LLC, shall provide written responses and responsive documents to Plaintiff’s 14 requests for production, set one, served on March 1, 2022; 15 5. Plaintiff's request for attorneys’ fees is GRANTED; and 16 6. Defendant Doctor’s Choice Modesto, LLC, and counsel of record Ogden Law 17 Firm, PC, shall, jointly and severally,” be obligated to pay $776.50 in attorneys’ 18 fees to Plaintiff, to be produced to the offices of Moore Law Firm, P.C., no later 19 than thirty (30) days from the date of entry of this order. 20 IT IS SO ORDERED. DAM Le 22 | Dated: _April 21, 2022 _ ef 33 UNITED STATES MAGISTRATE JUDGE

24 25 26 27 |2 if the Defendant or counsel disagree with this manner of imposing the award of attorneys’ fees, they may file a request for clarification or alteration regarding who is responsible or required to pay the attorneys’ fees within three 28 | (3) days of entry of this order. However, such request shall not request alteration of the amount of fees awarded.