1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TSI USA LLC, Case No. 17-cv-03536-HSG
8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE 9 v. OPPOSITION AND GRANTING IN PART DEFENDANT’S MOTION FOR 10 UBER TECHNOLOGIES, INC., ATTORNEYS’ FEES AND COSTS 11 Defendant. Re: Dkt. Nos. 103, 113
12 13 Pending before the Court is Defendant Uber Technologies, Inc.’s motion for attorneys’ 14 fees and costs. See Dkt. No. 103. Because Plaintiff TSI USA LLC failed to oppose the motion by 15 the October 22, 2019, deadline, it also filed a motion for leave to file a belated opposition to the 16 motion for attorneys’ fees. See Dkt. No. 113. The Court finds this matter appropriate for 17 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). As 18 discussed in more detail below, the Court GRANTS Plaintiff’s motion for leave to oppose the 19 motion for attorneys’ fees and considers the opposition submitted. Even considering the 20 opposition, however, the Court GRANTS IN PART Defendant’s motion for attorneys’ fees and 21 costs, and provides Defendant an opportunity to respond to Plaintiff’s opposition brief. 22 I. BACKGROUND 23 A. Motion for Attorneys’ Fees 24 On May 16, 2019, Defendant moved to dismiss Plaintiff’s fraud and defamation claims, as 25 well as its prayer for attorneys’ fees and exemplary damages alleged in the Second Amended 26 Complaint (“SAC”). See Dkt. No. 90. Plaintiff failed to oppose the motion. Only after the Court 27 issued an order to show cause did Plaintiff acknowledge that it was not opposing the motion. See 1 2019. See Dkt. No. 100. Defendant then filed the instant motion to recover attorneys’ fees and 2 costs associated with its efforts to file the unopposed motion to dismiss. See Dkt. No. 103. Yet 3 again, Plaintiff failed to oppose the motion for attorneys’ fees by the deadline. See Civil L.R. 7- 4 3(a)–(b). Defendant filed a reply brief, see Dkt. No. 107, and still Plaintiff did not respond. 5 B. Plaintiff’s Local Counsel 6 In parallel, Plaintiff’s local counsel Edwin Prather, from Prather Law Offices, sought leave 7 to withdraw as counsel on May 30, 2019. See Dkt. No. 91. Since that time, the Court twice 8 directed Plaintiff to retain new local counsel. First, in granting the motion to withdraw on May 9 31, 2019, the Court ordered Plaintiff to “retain new local co-counsel within 30 days to comply 10 with Local Civil Rule 11-3(a)(3), regarding Pro Hac Vice requirements.” See Dkt. No. 92 at 4. 11 Second, in its order granting Defendant’s motion to dismiss on September 17, 2019, the Court 12 directed Plaintiff to retain local counsel by the October 8, 2019, case management conference. See 13 Dkt. No. 100 at 2. During the case management conference, Mr. Steven Shebar represented to the 14 Court that he anticipated having a signed engagement by local counsel that week. Yet Plaintiff did 15 not file an appearance of local counsel for over a month after that representation. On November 16 20, 2019, Defendant filed an administrative motion with the Court asking for guidance as to how 17 to proceed given that Plaintiff still lacked local counsel. See Dkt. No. 108. Only after 18 Defendant’s administrative motion did Plaintiff’s local counsel, Mr. Loren Hamilton McRoss, file 19 a notice of appearance later that same day. See Dkt. No. 109. 20 C. Motion for Leave to File Opposition to Motion for Attorneys’ Fees 21 In light of these filings, the Court set a case management conference for November 26, 22 2019. See Dkt. No. 110. At the hearing, Mr. McRoss appeared for Plaintiff and raised for the first 23 time that Plaintiff intended to seek leave to file a late opposition to Defendant’s motion for 24 attorneys’ fees and costs. Over a week later, Plaintiff filed the motion for leave to file the 25 opposition. See Dkt. No. 113. In the motion, Mr. Shebar stated that he had unanticipated family 26 matters that required his attention beginning on October 10, 2019. See Dkt. Nos. 113 at 2, 113-2 27 at ¶¶ 1–5. He further stated that “he has attempted in good faith, to the best of his ability, to 1 id. Defendant has opposed the motion. See Dkt. No. 114. 2 II. DISCUSSION 3 A. Motion for Leave to File Opposition 4 Plaintiff seeks leave to file an opposition to Defendant’s motion for attorneys’ fees almost 5 seven weeks after its original due date. See Dkt. No. 113. Under Federal Rule of Civil Procedure 6 6, a court may, for good cause, extend a deadline “on motion made after the time has expired if the 7 party failed to act because of excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B). To determine 8 whether neglect is excusable, the court may consider various factors, including: (1) “the danger of 9 prejudice to the opposing party; (2) the length of the delay and its potential impact on the 10 proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” See 11 Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. 12 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 13 Here, Plaintiff contends that excusable neglect exists because Mr. Shebar was dealing with 14 a family emergency from early October to early December 2019. See Dkt. Nos. 113 at 2, 113-2 at 15 ¶¶ 1–5. Consequently, he was unable to meet the October 22, 2019, opposition deadline. The 16 Court finds that Plaintiff has demonstrated excusable neglect under the circumstances. Although 17 Plaintiff delayed seeking an extension of time for its opposition for several weeks, the Court finds 18 that the reason for Plaintiff’s delay was unanticipated and significant. Moreover, the opposition at 19 issue here is for a motion for attorneys’ fees, unrelated to the merits of the case, that was not 20 noticed for argument until February 2020. To the extent Defendant has raised concerns about 21 possible prejudice from a delay in discovery, the Court has already extended the fact discovery 22 deadline to March 16, 2020. See Dkt. No. 112. The parties therefore still have ample time to 23 prepare in advance of the June 4, 2020, dispositive motions hearing deadline and the September 24 14, 2020, trial. See Dkt. No. 105. 25 The Court accordingly exercises its discretion and GRANTS Plaintiff’s motion for leave 26 to file its opposition, and deems it filed at Dkt. No. 113-1, Ex. A. The Court considers this 27 opposition in its analysis below. 1 B. Motion for Attorneys’ Fees 2 That the Court has found excusable neglect for Plaintiff’s late-filed opposition to the 3 motion for attorneys’ fees does not end the inquiry. The Court must still evaluate whether 4 Defendant is entitled to attorneys’ fees incurred in filing the unopposed motion to dismiss the 5 Second Amended Complaint; its reply to the unopposed motion; and the instant attorneys’ fees 6 motion. The Court understands that counsel may at times have to balance unexpected personal 7 obligations with Court-imposed deadlines. Federal Rule of Civil Procedure 6 and Civil Local 8 Rule 6-3 exist to allow parties to seek more time if needed and for good cause. However, 9 Plaintiff’s belated opposition brief is not an isolated incident. Even before Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TSI USA LLC, Case No. 17-cv-03536-HSG
8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE 9 v. OPPOSITION AND GRANTING IN PART DEFENDANT’S MOTION FOR 10 UBER TECHNOLOGIES, INC., ATTORNEYS’ FEES AND COSTS 11 Defendant. Re: Dkt. Nos. 103, 113
12 13 Pending before the Court is Defendant Uber Technologies, Inc.’s motion for attorneys’ 14 fees and costs. See Dkt. No. 103. Because Plaintiff TSI USA LLC failed to oppose the motion by 15 the October 22, 2019, deadline, it also filed a motion for leave to file a belated opposition to the 16 motion for attorneys’ fees. See Dkt. No. 113. The Court finds this matter appropriate for 17 disposition without oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). As 18 discussed in more detail below, the Court GRANTS Plaintiff’s motion for leave to oppose the 19 motion for attorneys’ fees and considers the opposition submitted. Even considering the 20 opposition, however, the Court GRANTS IN PART Defendant’s motion for attorneys’ fees and 21 costs, and provides Defendant an opportunity to respond to Plaintiff’s opposition brief. 22 I. BACKGROUND 23 A. Motion for Attorneys’ Fees 24 On May 16, 2019, Defendant moved to dismiss Plaintiff’s fraud and defamation claims, as 25 well as its prayer for attorneys’ fees and exemplary damages alleged in the Second Amended 26 Complaint (“SAC”). See Dkt. No. 90. Plaintiff failed to oppose the motion. Only after the Court 27 issued an order to show cause did Plaintiff acknowledge that it was not opposing the motion. See 1 2019. See Dkt. No. 100. Defendant then filed the instant motion to recover attorneys’ fees and 2 costs associated with its efforts to file the unopposed motion to dismiss. See Dkt. No. 103. Yet 3 again, Plaintiff failed to oppose the motion for attorneys’ fees by the deadline. See Civil L.R. 7- 4 3(a)–(b). Defendant filed a reply brief, see Dkt. No. 107, and still Plaintiff did not respond. 5 B. Plaintiff’s Local Counsel 6 In parallel, Plaintiff’s local counsel Edwin Prather, from Prather Law Offices, sought leave 7 to withdraw as counsel on May 30, 2019. See Dkt. No. 91. Since that time, the Court twice 8 directed Plaintiff to retain new local counsel. First, in granting the motion to withdraw on May 9 31, 2019, the Court ordered Plaintiff to “retain new local co-counsel within 30 days to comply 10 with Local Civil Rule 11-3(a)(3), regarding Pro Hac Vice requirements.” See Dkt. No. 92 at 4. 11 Second, in its order granting Defendant’s motion to dismiss on September 17, 2019, the Court 12 directed Plaintiff to retain local counsel by the October 8, 2019, case management conference. See 13 Dkt. No. 100 at 2. During the case management conference, Mr. Steven Shebar represented to the 14 Court that he anticipated having a signed engagement by local counsel that week. Yet Plaintiff did 15 not file an appearance of local counsel for over a month after that representation. On November 16 20, 2019, Defendant filed an administrative motion with the Court asking for guidance as to how 17 to proceed given that Plaintiff still lacked local counsel. See Dkt. No. 108. Only after 18 Defendant’s administrative motion did Plaintiff’s local counsel, Mr. Loren Hamilton McRoss, file 19 a notice of appearance later that same day. See Dkt. No. 109. 20 C. Motion for Leave to File Opposition to Motion for Attorneys’ Fees 21 In light of these filings, the Court set a case management conference for November 26, 22 2019. See Dkt. No. 110. At the hearing, Mr. McRoss appeared for Plaintiff and raised for the first 23 time that Plaintiff intended to seek leave to file a late opposition to Defendant’s motion for 24 attorneys’ fees and costs. Over a week later, Plaintiff filed the motion for leave to file the 25 opposition. See Dkt. No. 113. In the motion, Mr. Shebar stated that he had unanticipated family 26 matters that required his attention beginning on October 10, 2019. See Dkt. Nos. 113 at 2, 113-2 27 at ¶¶ 1–5. He further stated that “he has attempted in good faith, to the best of his ability, to 1 id. Defendant has opposed the motion. See Dkt. No. 114. 2 II. DISCUSSION 3 A. Motion for Leave to File Opposition 4 Plaintiff seeks leave to file an opposition to Defendant’s motion for attorneys’ fees almost 5 seven weeks after its original due date. See Dkt. No. 113. Under Federal Rule of Civil Procedure 6 6, a court may, for good cause, extend a deadline “on motion made after the time has expired if the 7 party failed to act because of excusable neglect.” See Fed. R. Civ. P. 6(b)(1)(B). To determine 8 whether neglect is excusable, the court may consider various factors, including: (1) “the danger of 9 prejudice to the opposing party; (2) the length of the delay and its potential impact on the 10 proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” See 11 Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000) (citing Pioneer Inv. Servs. 12 Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). 13 Here, Plaintiff contends that excusable neglect exists because Mr. Shebar was dealing with 14 a family emergency from early October to early December 2019. See Dkt. Nos. 113 at 2, 113-2 at 15 ¶¶ 1–5. Consequently, he was unable to meet the October 22, 2019, opposition deadline. The 16 Court finds that Plaintiff has demonstrated excusable neglect under the circumstances. Although 17 Plaintiff delayed seeking an extension of time for its opposition for several weeks, the Court finds 18 that the reason for Plaintiff’s delay was unanticipated and significant. Moreover, the opposition at 19 issue here is for a motion for attorneys’ fees, unrelated to the merits of the case, that was not 20 noticed for argument until February 2020. To the extent Defendant has raised concerns about 21 possible prejudice from a delay in discovery, the Court has already extended the fact discovery 22 deadline to March 16, 2020. See Dkt. No. 112. The parties therefore still have ample time to 23 prepare in advance of the June 4, 2020, dispositive motions hearing deadline and the September 24 14, 2020, trial. See Dkt. No. 105. 25 The Court accordingly exercises its discretion and GRANTS Plaintiff’s motion for leave 26 to file its opposition, and deems it filed at Dkt. No. 113-1, Ex. A. The Court considers this 27 opposition in its analysis below. 1 B. Motion for Attorneys’ Fees 2 That the Court has found excusable neglect for Plaintiff’s late-filed opposition to the 3 motion for attorneys’ fees does not end the inquiry. The Court must still evaluate whether 4 Defendant is entitled to attorneys’ fees incurred in filing the unopposed motion to dismiss the 5 Second Amended Complaint; its reply to the unopposed motion; and the instant attorneys’ fees 6 motion. The Court understands that counsel may at times have to balance unexpected personal 7 obligations with Court-imposed deadlines. Federal Rule of Civil Procedure 6 and Civil Local 8 Rule 6-3 exist to allow parties to seek more time if needed and for good cause. However, 9 Plaintiff’s belated opposition brief is not an isolated incident. Even before Mr. Shebar’s family 10 emergency, he had already exhibited a pattern of failing to comply with Court-imposed deadlines 11 that cannot be explained by mere inadvertence: 12 • Plaintiff missed the original deadline to respond to Defendant’s first motion to 13 dismiss and sought a stipulation to extend the deadline from September 28, 2017, to 14 October 2, 2017. See Dkt. No. 44. 15 • Plaintiff then missed the new, stipulated deadline to respond to the motion to 16 dismiss and sought further leave to file an opposition by October 4, 2017. See Dkt. 17 No. 48. 18 • Plaintiff missed the deadline to file the SAC and sought leave to file it late. See 19 Dkt. No. 87. 20 • Plaintiff missed the deadline to retain local counsel within 30 days of the Court’s 21 May 31, 2019, order. See Dkt. No. 92 at 4. 22 • Plaintiff missed the deadline to file its response to Defendant’s motion to dismiss 23 the SAC. And only after the Court issued an Order To Show Cause did Plaintiff 24 acknowledge it was not opposing the motion. See Dkt. Nos. 94, 95. 25 • Plaintiff missed the deadline to retain local counsel by the case management 26 conference on October 8, 2019, as directed by the Court on September 17, 2019. 27 See Dkt. No. 100 at 2. 1 Plaintiff’s out-of-state counsel and represented that Plaintiff would file a notice of 2 appearance of local counsel imminently, but did not do so until November 20, 3 2019. See Dkt. Nos. 106, 109. 4 5 Because of Plaintiff’s counsel’s conduct, the proceedings have been delayed and Defendant and 6 the Court have needlessly expended time and resources. Had Plaintiff timely filed a statement of 7 nonopposition to the motion to dismiss the SAC by the May 30, 2019, deadline, the pleadings 8 would have been finalized approximately six months ago. See Civil L.R. 7-3(b) (“If the party 9 against whom the motion is directed does not oppose the motion, that party must file with the 10 Court a Statement of Nonopposition within the time for filing and serving any opposition.”). The 11 Court further notes that had Plaintiff retained local counsel when directed to do so in May 2019, 12 local counsel could have handled this action in Mr. Shebar’s absence or to the extent he had other 13 competing obligations as a sole practitioner. 14 To ensure Plaintiff’s compliance with future orders and the Local Rules, the Court finds it 15 appropriate for Plaintiff to compensate Defendant for the reasonable fees that Defendant has 16 incurred due to Plaintiff’s failure to timely file its statement of nonopposition by May 30, 2019. 17 See, e.g., Civil L.R. 1-4; Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1035 (9th Cir. 18 2012) (“District courts have the inherent power to sanction a lawyer for a full range of litigation 19 abuses,” including for “willful disobedience of a court order.”) (quotation omitted). This includes 20 Defendant’s preparation of the reply brief in support of the unopposed motion to dismiss, see Dkt. 21 No. 93; Defendant’s response regarding the order to show cause, see Dkt. No. 96; Defendant’s 22 related motion for attorneys’ fees, see Dkt. Nos. 103, 104, 107; and the response to Plaintiff’s 23 motion for leave to file an opposition, see Dkt. No. 114. 24 Having reviewed the Declaration of Brian C. Rocca, see Dkt. Nos. 104, the Court cannot 25 determine the fees that Defendant reasonably incurred as part of these specific tasks. Rather, 26 Defendant’s hours and requested fees appear to refer to all time incurred from April through 27 September 2019. See id. at 4. Accordingly, the Court GRANTS IN PART the motion for 1 attorneys’ fees incurred in preparing the reply brief in support of the unopposed motion to dismiss; 2 || the response regarding the order to show cause; the motion for attorneys’ fees, up to and including 3 the time spent preparing this supplemental declaration; and the response to Plaintiff's motion for 4 || leave to file an opposition. 5 To the extent Defendant also seeks attorneys’ fees for the time it spent in preparing the 6 unopposed motion to dismiss, see Dkt. No. 103, the Court requires further briefing on this issue. 7 || Plaintiff's counsel argued in the opposition to the motion for attorney’s fees that Plaintiff amended 8 its allegations in the second amended complaint as directed by the Court and in good faith, and 9 provides redline versions for comparison. See Dkt. No. 113-1, Ex. A at 5, 11-12. Although the 10 Court concluded that these amendments remained insufficient to survive the motion to dismiss, 11 see Dkt. No. 100, Defendant has not yet established that in filing the SAC itself, Plaintiff willfully 12 || disobeyed a Court order such that fees are appropriate. The Court understands that Defendant has 5 13 not had an opportunity to respond to the opposition in general, or this argument specifically, and 14 || therefore DIRECTS Defendant to file a reply brief in support of the motion for attorneys’ fees. 3 15 Defendant shall file both the supplemental declaration and the reply brief by January 17, 2020. 16 || The Court cautions all parties that it expects full compliance with all Court-imposed deadlines in 3 17 future, and that the parties will work efficiently toward resolution of this action. IT IS SO ORDERED. 19 || Dated: 1/6/2020 20 Alayed 5 Mbl_|p. HAYWOOD S. GILLIAM, JR. United States District Judge 22 23 24 25 26 27 28