1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Malaika Washington, et al., No. CV-21-01318-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Freedom of Expression LLC, et al.,
13 Defendants. 14 15 Before the Court is Defendants Freedom of Expression LLC, Wisnowsky 16 Incorporated, and Todd Borowsky’s (collectively “Defendants”) Application for an Award 17 of Reasonable Expenses as a Sanction Against Certain Plaintiffs. (Doc. 214.) The 18 Application is fully briefed. (Docs. 214, 218, 219.) For the following reasons, the Court 19 will grant the Application in part and deny the Application in part. 20 I. BACKGROUND 21 The Court has previously set forth the factual background of this Motion. 22 (Doc. 210.) As relevant here, Plaintiffs and Defendants were involved in a discovery 23 dispute concerning Plaintiffs’ responses to Written Deposition Question 26 24 (“Question 26”). (Id. at 2.) The Court resolved the dispute by ordering Plaintiffs to “provide 25 full answers, while stating objections, to Defendants’ written deposition questions no later 26 than January 10, 2024.” (Doc. 185.) Despite the Court’s Order, twelve Plaintiffs still failed 27 to provide sufficient information under Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil 28 Procedure. (Doc. 210 at 6-7.) Defendants asked the Court to dismiss the twelve Plaintiffs 1 as a sanction for violating the Court’s discovery order. (Id. at 4.) The Court instead ordered 2 the twelve Plaintiffs to pay Defendants’ reasonable expenses related to the litigation over 3 Question 26. (Id. at 10.) Specifically, the Court ordered: 4 The Court will award Defendants’ reasonable expenses related to the 5 litigation of this discovery issue, beginning on October 31, 2023, the date 6 that the Court issued its Amended Scheduling Order permitting limited additional discovery, up to and including Defendants’ fee application 7 following this Order. The reasonable expenses will be paid by the [twelve] 8 Late Disclosing Plaintiffs.
9 (Id. at 10-11.) 10 Defendants submitted their fee application requesting $31,775.25 in fees based on 11 94.25 billable hours. (Docs. 214, 215.) Plaintiffs responded on May 28, 2024, arguing that 12 “Defendants’ billing entries are overwhelmingly irrelevant, duplicative, excessive, and 13 unnecessary.” (Doc. 218 at 1.) Defendants filed their reply on June 04, 2024. (Doc. 219.) 14 II. LEGAL STANDARD 15 Federal district courts “possess certain ‘inherent powers,’ not conferred by rule or 16 statute, ‘to manage their own affairs so as to achieve the orderly and expeditious disposition 17 of cases.’” Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (quoting 18 Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962)). One aspect of the court’s inherent 19 power is “the ability to fashion an appropriate sanction for conduct which abuses the 20 judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). A permissible 21 sanction includes “instructing a party that has acted in bad faith to reimburse legal fees and 22 costs incurred by the other side.” Goodyear Tire & Rubber Co., 581 U.S. at 107. Such a 23 sanction, however, “must be compensatory rather than punitive in nature.” Id. at 108. 24 A sanction of attorney’s fees and costs is compensatory when it “shift[s] only those 25 attorney’s fees incurred because of the misconduct at issue.” Id.; see also Am. Unites for 26 Kids v. Rousseau, 985 F.3d 1075, 1089 (9th Cir. 2021). To determine if a fee occurred 27 because of a party’s misconduct, the court asks if its sanctions “cover[] the legal bills that 28 the litigation abuse occasioned,” or if the fees “would have occurred without the 1 misconduct.” Goodyear Tire & Rubber Co., 581 U.S. at 108. 2 A party requesting attorney’s fees pursuant to a sanction order must ensure their 3 request is reasonable. To determine the reasonableness of a requested fee award, the court 4 uses the lodestar approach. Coe v. Hirsch, No. CV-21-00478-PHX SMM (MTM), 2022 5 WL 508841, at *1 (D. Ariz. Jan. 21, 2022); see also Pelayo v. Platinum Limousine Servs., 6 Inc., 804 Fed. Appx. 522, 524 (9th Cir. 2020). “Under this approach, a ‘presumptively 7 reasonable’ fee award ‘is the number of hours reasonably expended on the litigation 8 multiplied by a reasonable hourly rate.’” Coe, 2022 WL 508841, at *1 (quoting Camacho 9 v. Bridgeport Fin., Inc., 523 F.3d 973 982 (9th Cir. 2008)). 10 III. DISCUSSION 11 A. Relevance of the Requested Attorneys’ Fees 12 Plaintiffs bring three challenges under Goodyear Tire and Rubber Company. 13 1. Separate Arbitration Proceeding 14 Plaintiffs first challenge the following time entries, which they claim relate to a 15 separate arbitration proceeding before the American Arbitration Association: EXCHANGE E-MAILS WITH OPPOSING 16 1/30/24 TQS 2.10 $735.00 COUNSEL AND D. WILENCHIK 17 REGARDING PLAINTIFF'S REQUEST THAT WE WITHDRAW OUR MOTION TO 18 DISMISS (.6); BEGIN DRAFTING 19 SETTLEMENT MEMORANDUM (1.5) REVIEW E-MAIL FROM COUNSEL TO 20 2/2/24 MAB 0.10 $17.50 ARBITRATOR REGARDING 21 SETTLEMENT CONFERENCE 22 (Doc. 218 at 4.) Defendants agree these entries were submitted in error. (Doc. 219 at 1.) 23 Accordingly, the Court deducts 1.50 hours from the January 1, 2024, entry and 0.10 hours 24 from the February 2, 2024, entry. Defendants’ fee request is reduced by $542.50. 25 2. Events Arising During the Normal Course of Litigation 26 Plaintiffs next challenge five entries that they claim would have arisen during the 27 normal course of litigation and are wholly irrespective of the sanctionable conduct. 28 (Doc. 218 at 5.) Those entries are: 1 TELECONFERENCE WITH OPPOSING 12/7/23 TQS 0.70 $245.00 COUNSEL RE HIS REQUEST FOR AN 2 EXTENSION OF TIME TO COMPLETE 3 DISCOVERY RESPONSES. (0.2). EXCHANGE EMAILS WITH D. 4 WILENCHIK AND M. WORTHINGTON 5 RE THE SAME AND SEND EMAIL TO OPPOSING COUNSEL AGREEING TO 6 MUTUAL EXTENSION OF DEADLINE 7 FOR WRITTEN DISCOVERY RESPONSES ONLY (0.5) 8 EXCHANGE E-MAILS WITH OPPOSING 12/8/23 TQS 0.30 $105.00 9 COUNSEL RE DISCOVERY ISSUES PREPARE, REVISE, FINALIZE, AND FILE 10 12/11/23 TQS 2.80 $980.00 RESPONSE TO PLAINTIFF'S MOTION TO 11 COMPEL RULE 30(B)(6) DEPOSITION PREPARE NOTICE OF ERRATA 12 12/12/23 TQS 0.50 $175.00 ADDRESSING ERROR IN RESPONSE TO 13 MOTION TO COMPEL BY PLAINTIFFS REVIEW COURT'S DENIAL OF 14 12/14/23 TQS 1.80 $630.00 PLAINTIFF’S MOTION TO COMPEL 15 DEPOSITION AND EXCHANGE E-MAILS WITH CLIENT REGARDING (.3); BEGIN 16 REVIEWING PLAINTIFF’S RESPONSES 17 TO DEPOSITION QUESTIONS AND REQUESTS FOR PRODUCTION (1.5) 18 (Id.) 19 Defendants argue their review of Plaintiffs’ responses to deposition questions and 20 requests for production were “absolutely necessary . . . to properly frame Defendants’ 21 arguments to the Court.” (Doc. 219 at 2.) Defendants also argue their review of Plaintiffs’ 22 Motion to Compel a Rule 30(B)(6) Deposition was part of an attempt by Plaintiffs to 23 “stonewall[] Defendants on critical, legitimate written deposition questions.” (Id.) 24 Defendants conclude with an overarching point: they “would not have incurred any of the 25 fees sought in the Fee App[lication] if Plaintiffs had simply done what they had agreed and 26 stipulated they would do in the first place.” (Id.) 27 Sanctions under the Court’s inherent powers generally must “shift only those 28 attorney’s fees incurred because of the misconduct at issue.” Goodyear Tire & Rubber Co., 1 581 U.S. at 108.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Malaika Washington, et al., No. CV-21-01318-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Freedom of Expression LLC, et al.,
13 Defendants. 14 15 Before the Court is Defendants Freedom of Expression LLC, Wisnowsky 16 Incorporated, and Todd Borowsky’s (collectively “Defendants”) Application for an Award 17 of Reasonable Expenses as a Sanction Against Certain Plaintiffs. (Doc. 214.) The 18 Application is fully briefed. (Docs. 214, 218, 219.) For the following reasons, the Court 19 will grant the Application in part and deny the Application in part. 20 I. BACKGROUND 21 The Court has previously set forth the factual background of this Motion. 22 (Doc. 210.) As relevant here, Plaintiffs and Defendants were involved in a discovery 23 dispute concerning Plaintiffs’ responses to Written Deposition Question 26 24 (“Question 26”). (Id. at 2.) The Court resolved the dispute by ordering Plaintiffs to “provide 25 full answers, while stating objections, to Defendants’ written deposition questions no later 26 than January 10, 2024.” (Doc. 185.) Despite the Court’s Order, twelve Plaintiffs still failed 27 to provide sufficient information under Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil 28 Procedure. (Doc. 210 at 6-7.) Defendants asked the Court to dismiss the twelve Plaintiffs 1 as a sanction for violating the Court’s discovery order. (Id. at 4.) The Court instead ordered 2 the twelve Plaintiffs to pay Defendants’ reasonable expenses related to the litigation over 3 Question 26. (Id. at 10.) Specifically, the Court ordered: 4 The Court will award Defendants’ reasonable expenses related to the 5 litigation of this discovery issue, beginning on October 31, 2023, the date 6 that the Court issued its Amended Scheduling Order permitting limited additional discovery, up to and including Defendants’ fee application 7 following this Order. The reasonable expenses will be paid by the [twelve] 8 Late Disclosing Plaintiffs.
9 (Id. at 10-11.) 10 Defendants submitted their fee application requesting $31,775.25 in fees based on 11 94.25 billable hours. (Docs. 214, 215.) Plaintiffs responded on May 28, 2024, arguing that 12 “Defendants’ billing entries are overwhelmingly irrelevant, duplicative, excessive, and 13 unnecessary.” (Doc. 218 at 1.) Defendants filed their reply on June 04, 2024. (Doc. 219.) 14 II. LEGAL STANDARD 15 Federal district courts “possess certain ‘inherent powers,’ not conferred by rule or 16 statute, ‘to manage their own affairs so as to achieve the orderly and expeditious disposition 17 of cases.’” Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (quoting 18 Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962)). One aspect of the court’s inherent 19 power is “the ability to fashion an appropriate sanction for conduct which abuses the 20 judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991). A permissible 21 sanction includes “instructing a party that has acted in bad faith to reimburse legal fees and 22 costs incurred by the other side.” Goodyear Tire & Rubber Co., 581 U.S. at 107. Such a 23 sanction, however, “must be compensatory rather than punitive in nature.” Id. at 108. 24 A sanction of attorney’s fees and costs is compensatory when it “shift[s] only those 25 attorney’s fees incurred because of the misconduct at issue.” Id.; see also Am. Unites for 26 Kids v. Rousseau, 985 F.3d 1075, 1089 (9th Cir. 2021). To determine if a fee occurred 27 because of a party’s misconduct, the court asks if its sanctions “cover[] the legal bills that 28 the litigation abuse occasioned,” or if the fees “would have occurred without the 1 misconduct.” Goodyear Tire & Rubber Co., 581 U.S. at 108. 2 A party requesting attorney’s fees pursuant to a sanction order must ensure their 3 request is reasonable. To determine the reasonableness of a requested fee award, the court 4 uses the lodestar approach. Coe v. Hirsch, No. CV-21-00478-PHX SMM (MTM), 2022 5 WL 508841, at *1 (D. Ariz. Jan. 21, 2022); see also Pelayo v. Platinum Limousine Servs., 6 Inc., 804 Fed. Appx. 522, 524 (9th Cir. 2020). “Under this approach, a ‘presumptively 7 reasonable’ fee award ‘is the number of hours reasonably expended on the litigation 8 multiplied by a reasonable hourly rate.’” Coe, 2022 WL 508841, at *1 (quoting Camacho 9 v. Bridgeport Fin., Inc., 523 F.3d 973 982 (9th Cir. 2008)). 10 III. DISCUSSION 11 A. Relevance of the Requested Attorneys’ Fees 12 Plaintiffs bring three challenges under Goodyear Tire and Rubber Company. 13 1. Separate Arbitration Proceeding 14 Plaintiffs first challenge the following time entries, which they claim relate to a 15 separate arbitration proceeding before the American Arbitration Association: EXCHANGE E-MAILS WITH OPPOSING 16 1/30/24 TQS 2.10 $735.00 COUNSEL AND D. WILENCHIK 17 REGARDING PLAINTIFF'S REQUEST THAT WE WITHDRAW OUR MOTION TO 18 DISMISS (.6); BEGIN DRAFTING 19 SETTLEMENT MEMORANDUM (1.5) REVIEW E-MAIL FROM COUNSEL TO 20 2/2/24 MAB 0.10 $17.50 ARBITRATOR REGARDING 21 SETTLEMENT CONFERENCE 22 (Doc. 218 at 4.) Defendants agree these entries were submitted in error. (Doc. 219 at 1.) 23 Accordingly, the Court deducts 1.50 hours from the January 1, 2024, entry and 0.10 hours 24 from the February 2, 2024, entry. Defendants’ fee request is reduced by $542.50. 25 2. Events Arising During the Normal Course of Litigation 26 Plaintiffs next challenge five entries that they claim would have arisen during the 27 normal course of litigation and are wholly irrespective of the sanctionable conduct. 28 (Doc. 218 at 5.) Those entries are: 1 TELECONFERENCE WITH OPPOSING 12/7/23 TQS 0.70 $245.00 COUNSEL RE HIS REQUEST FOR AN 2 EXTENSION OF TIME TO COMPLETE 3 DISCOVERY RESPONSES. (0.2). EXCHANGE EMAILS WITH D. 4 WILENCHIK AND M. WORTHINGTON 5 RE THE SAME AND SEND EMAIL TO OPPOSING COUNSEL AGREEING TO 6 MUTUAL EXTENSION OF DEADLINE 7 FOR WRITTEN DISCOVERY RESPONSES ONLY (0.5) 8 EXCHANGE E-MAILS WITH OPPOSING 12/8/23 TQS 0.30 $105.00 9 COUNSEL RE DISCOVERY ISSUES PREPARE, REVISE, FINALIZE, AND FILE 10 12/11/23 TQS 2.80 $980.00 RESPONSE TO PLAINTIFF'S MOTION TO 11 COMPEL RULE 30(B)(6) DEPOSITION PREPARE NOTICE OF ERRATA 12 12/12/23 TQS 0.50 $175.00 ADDRESSING ERROR IN RESPONSE TO 13 MOTION TO COMPEL BY PLAINTIFFS REVIEW COURT'S DENIAL OF 14 12/14/23 TQS 1.80 $630.00 PLAINTIFF’S MOTION TO COMPEL 15 DEPOSITION AND EXCHANGE E-MAILS WITH CLIENT REGARDING (.3); BEGIN 16 REVIEWING PLAINTIFF’S RESPONSES 17 TO DEPOSITION QUESTIONS AND REQUESTS FOR PRODUCTION (1.5) 18 (Id.) 19 Defendants argue their review of Plaintiffs’ responses to deposition questions and 20 requests for production were “absolutely necessary . . . to properly frame Defendants’ 21 arguments to the Court.” (Doc. 219 at 2.) Defendants also argue their review of Plaintiffs’ 22 Motion to Compel a Rule 30(B)(6) Deposition was part of an attempt by Plaintiffs to 23 “stonewall[] Defendants on critical, legitimate written deposition questions.” (Id.) 24 Defendants conclude with an overarching point: they “would not have incurred any of the 25 fees sought in the Fee App[lication] if Plaintiffs had simply done what they had agreed and 26 stipulated they would do in the first place.” (Id.) 27 Sanctions under the Court’s inherent powers generally must “shift only those 28 attorney’s fees incurred because of the misconduct at issue.” Goodyear Tire & Rubber Co., 1 581 U.S. at 108. In December 2023, Plaintiffs failed to meaningfully respond to Question 2 26. (Docs. 172, 180, 181.) That prompted the ensuing discovery dispute leading to these 3 sanctions. (Docs. 181, 210 at 2.) The December responses were, however, Plaintiffs first 4 response to the written deposition questions submitted by Defendants. That means the legal 5 fees arising from Defendants’ review of the December responses would have occurred 6 during the normal course of litigation and absent the sanctioned conduct. See Goodyear 7 Tire & Rubber, Co., 581 U.S. at 108. The legal fees arising from the motion to extend 8 discovery deadlines and emails with opposing counsel also would have occurred absent the 9 sanctioned conduct because those events happened before Plaintiffs provided their 10 December responses. (Doc. 180.) Therefore, the Court deducts 0.70 hours from the 11 December 7, 2023, entry; 0.30 hours from the December 8, 2023, entry; and 1.50 hours 12 from the December 14, 2024, entry. 13 Similarly, the Court will deduct the entries related to Plaintiffs’ Motion to Compel 14 a Rule 30(B)(6) Deposition. Although that motion occurred around the same time as 15 Plaintiffs’ sanctionable conduct, it involved a separate discovery issue from Question 26 16 and is not causally connected. See Goodyear Tire & Rubber, Co., 581 U.S. at 109. 17 Therefore, the Court also deducts 2.80 hours from the December 11, 2023, entry; 0.50 18 hours from the December 12, 2023, entry; and 0.30 hours from the December 14, 2023, 19 entry. Defendants’ fee request is reduced by $ 2,135.00. 20 Defendants unpersuasively argue their review of Plaintiffs’ Motion to Compel a 21 Rule 30(B)(6) Deposition was part of Plaintiffs’ attempt to “stonewall Defendants.” 22 (Doc. 219 at 2.) “In exceptional cases, . . . a trial court [can] shift all of a party’s fees, from 23 either the start or some midpoint of a suit.” Goodyear Tire & Rubber, Co., 581 U.S. at 110. 24 But this is not an exceptional case. The Court disagrees that Plaintiffs engaged in some sort 25 of “sordid scheme” to stonewall the entire discovery process. Id. The scope of sanctions 26 will remain limited to Defendants’ reasonable expenses incurred because of Plaintiffs’ 27 misconduct with Question 26. (Doc. 210 at 10.) 28 1 3. Administrative Fees 2 Plaintiffs conclude by challenging two entries they claim are wholly administrative 3 in nature. (Doc. 218 at 5-6.) They are: REVIEW E-MAIL FROM THE COURT 4 2/12/24 MAB 0.10 $17.50 CONFIRMING FILING OF RESPONSE TO 5 MOTION TO DISMISS AND MOTION TO STRIKE REPLY 6 EXCHANGE EMAILS WITH CLIENT 2/16/24 TQS 0.80 $280.00 7 REGARDING (.3); WORK WITH STAFF TO ORDER TRANSCRIPT OF ORAL 8 ARGUMENT HEARING (.5) 9 (Id.) Defendants do not address Plaintiffs argument in their reply. (Doc. 219 at 2.) The 10 Court’s Order encompasses “reasonable expenses related to litigation,” which includes 11 administrative tasks done by legal assistants and paralegals. (Doc. 210 at 10); see also 12 Goodyear Tire and Rubber Co., 581 U.S. at 107 (upholding costs as a sanction when they 13 are causally connected to malfeasance). Attorneys, however, cannot recover fees “for the 14 performance of administrative tasks which could and should be performed by secretarial 15 or paralegal staff.” Gary v. Carbon Cycle Ariz. LLC, 398 F. Supp. 3d 468, 487 (D. Ariz. 16 2019) (quoting Thalmer v. City of San Diego, No. 09-CV-2862-IEG BGS, 2012 WL 17 1463635, at *5 (S.D. Cal. Apr. 26, 2012)). Accordingly, the Court sustains the 0.10 hours 18 entered on February 12, 2024, and deducts 0.50 from the February 16, 2024, entry. 19 Defendants’ fee request is reduced by $175.00. 20 B. Reasonableness of Requested Attorneys’ Fees 21 Plaintiffs next bring three challenges to the reasonableness of Defendants’ 22 attorneys’ fees. 23 1. Hours Expended 24 Plaintiffs first challenge the amount of time Defendants spent preparing their 25 Responsive Brief to the Court’s Order to Show Cause. (Doc. 218 at 6.) As discussed, the 26 Court issued an Order to Show Cause after Plaintiffs failed to comply with the Discovery 27 Order concerning Question 26. (Doc. 198.) Plaintiffs and Defendants each submitted 28 responsive briefing on the Order to Show Cause. (Docs. 201, 204.) Plaintiffs’ brief 1 contained fifteen pages of argument, numerous legal citations, and over 400 pages of 2 exhibits. (Docs. 201, 201-1, 201-2, 201-3, 201-4, 201-5.) Defendants’ brief contained ten 3 pages of argument, numerous legal citations, and one exhibit. (Docs. 204, 204-1.) 4 Plaintiffs argue the 29.2 hours Defendants spent preparing their responsive brief 5 was unreasonable considering “the vast majority of the . . . brief contained unsupported 6 and conclusory arguments, mixed with attorney opinion[s] purporting as fact and law.” 7 (Doc. 218 at 6.) In addition, Plaintiffs point to the fact Defendants’ brief only contains one 8 new legal citation. (Id.) The relevant entries are: REVIEW PLAINTIFF'S RESPONSE TO 9 2/29/24 TQS 4.50 $1,575.00 COURT’S ORDER TO SHOW CAUSE AND 10 BEGIN RESEARCHING CASES CITED THEREIN (2.5); BEGIN OUTLINING 11 REPLY TO PLAINTIFF’S RESPONSE (2.0) 12 REVIEW AND ANALYZE PLAINTIFF'S 3/1/24 MCW 0.70 $280.00 OPPOSITION TO ORDER TO SHOW 13 CAUSE; DRAFT NOTES REGARDING 14 SAME; OFFICE CONFERENCE WITH T. SWENSEN REGARDING SAME 15 REVIEW COURT'S FILING 3/1/24 MAB 0.10 $17.50 16 NOTIFICATION REGARDING MOTION FOR ORDER TO SHOW CAUSE BY 17 PLAINTIFF WASHINGTON 18 3/1/24 TQS 1.80 $630.00 CONTINUED WORK ON RESPONSE TO PLAINTIFFS’ BRIEF RE OSC; EXCHANGE 19 EMAILS WITH M. WORTHINGTON 20 REGARDING THE SAME CONTINUE WORK ON RESPONSE TO 21 3/11/24 TQS 3.50 $1,225.00 PLAINTIFFS BRIEF REGARDING COURTS 22 ORDER TO SHOW CAUSE REVIEW E-MAILS BETWEEN COUNSEL 3/13/24 MAB 0.10 $17.50 23 REGARDING NOTICE OF 24 UNAVAILABILITY AND FILING SAME WITH THE COURT 25 REVIEW E-MAIL FROM MR. TOUPS 3/13/24 MAB 0.10 $17.50 REGARDING FILING OF 26 UNAVAILABILITY WITH THE COURT 27 REVISE AND FINALIZE MOTION FOR 3/14/24 ALN 0.30 $16.50 EXTENSION OF TIME AND PROPOSED 28 ORDER GRANTING MOTION FOR 1 EXTENSION 2 3/14/24 MAB 0.10 $17.50 REVIEW COURT’S FILING NOTIFICATION OF MOTION FOR 3 EXTENSION OF TIME TO FILE RESPONSE 4 REVIEW E-MAIL TO COUNSEL 3/14/24 MAB 0.10 $17.50 5 CONFIRMING SERVICE OF MOTION FOR EXTENSION OF TIME AND PROPOSED 6 ORDER 7 REVIEW COURT’S NOTIFICATION 3/14/24 MAB 0.10 $17.50 REGARDING ORDER GRANTING 8 DEFENDANT’S MOTION FOR 9 EXTENSION OF TIME TO FILE RESPONSE BRIEF 10 WORK WITH OPPOSING COUNSEL TO 3/14/24 TQS 6.40 $2,240.00 11 FINALIZE AND FILE NOTICE OF DISCOVERY DISPUTE (0.5) LEGAL 12 RESEARCH ON CASES CITED BY 13 PLAINTIFFS IN THEIR RESPONSE TO COURTS ORDER TO SHOW CAUSE; (3.5) 14 CONTINUE WORKING ON OUR 15 RESPONSE (2.4) ORGANIZE EXHIBITS FOR 16 3/15/24 ALN 0.20 $11.00 DEFENDANTS’ RESPONSIVE BRIEF 17 REGARDING ORDER TO SHOW CAUSE AND OPPOSITION TO PLAINTIFF’S 18 MOTION FOR LEAVE TO SERVE LATE 19 DISCLOSURES REVIEW RESPONSE TO ORDER TO 3/15/24 MCW 0.50 $200.00 20 SHOW CAUSE MOTION; TELEPHONE CALL WITH T. SWENSEN REGARDING 21 SAME 22 FINALIZE AND FILE RESPONSE 3/15/24 TQS 9.50 $3,325.00 REGARDING COURTS ORDER TO SHOW 23 CAUSE 24 REVIEW EXECUTED ORDER GRANTING 3/15/24 MAB 0.20 $35.00 EXTENSION AND CONFIRM 25 DOCKETING OF SAME 26 REVIEW REPLY TO ORDER TO SHOW 3/15/24 DIW 1.00 $500.00 CAUSE TO DISMISS 27 (Id. at 7-8.) 28 1 In response, Defendants claim they spent “closer to 20 hours drafting, editing, and 2 finalizing” their responsive brief and another six hours doing legal research. (Doc. 219 at 3 2-3.) Defendants argue that time “was necessary to rebut the specious arguments and 4 misleading factual assertions made by Plaintiffs’ counsel.” (Id. at 3.) As an example, 5 Defendants claim they needed “to comb through virtually the entire record” to verify 6 assertions made in Plaintiffs’ brief. (Id. at 3.) 7 The burden rests with the fee applicant to submit “evidence supporting the hours 8 worked and the rates claimed.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 9 2000) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (2000)). A fee applicant does so 10 by listing their hours and identifying the general subject matter of their time expenditures. 11 Id. Defendants have met that requirement in the abovementioned billing entries. Moreover, 12 spending 29.2 hours of billable time appears reasonable considering the extent of Plaintiffs’ 13 responsive brief. Even assuming the 400 pages of exhibits were previously disclosed, 14 Defendants needed to check numerous legal citations and consult the factual record to 15 respond to Plaintiffs’ brief. (Doc. 219 at 3.) That, coupled with Defendants drafting a 16 ten-page response, is sufficient to justify 29.2 hours of billable time. The Court finds the 17 time spent by Defendants on their responsive brief was not unreasonable. 18 2. Inconsistent Billing 19 Plaintiffs next challenge four entries as inconsistent. (Doc. 218 at 8.) They are: REVIEW MOTION TO STRIKE AND 20 2/1/24 TQS 1.20 $420.00 RESPONSE TO OUR MOTION TO 21 DISMISS FILED BY PLAINTIFFS, AND CONTINUE DRAFTING OUTLINE FOR 22 RESPONSE/REPLY TO SAME (1.0); 23 EXCHANGE EMAILS WITH D. WILENCHIK REGARDING SAME (.2) 24 E-MAILS WITH T. SWENSEN 2/1/24 DIW 0.30 $150.00 25 REGARDING PLAINTIFF RESPONSE TO OUR REPLY 26 FINALIZE ORAL ARGUMENT OUTLINE 4/10/24 TQS 3.70 $1,295.00 27 AND ORAL ARGUMENT NOTEBOOK (1.5); PREPARE FOR AND PARTICIPATE 28 IN ORAL ARGUMENT REGARDING 1 COURT’S ORDER TO SHOW CAUSE (2.0); EXCHANGE EMAILS WITH D. 2 WILENCHIK REGARDING SAME (.2) 3 EMAILS REGARDING COURT HEARING 4/10/24 DIW 0.30 $150.00 4 (Id. at 8.) Defendants agree there are inconsistencies. (Doc. 219 at 1.) Therefore, the Court 5 deducts 0.10 hours from both the February 1, 2024, and April 10, 2024, entries of attorney 6 Dennis Wilenchik (DIW). Defendants’ fee request is reduced by $100.00. 7 3. Double Billing 8 Plaintiffs finally challenge several entries they claim are double billed or redundant 9 in nature. (Doc. 218 at 8.) Those entries are: 10 REVIEW RESPONSES FROM PLAINTIFFS 12/14/23 MCW 1.90 $712.50 11 AND EXCHANGE E-MAILS WITH T. SWENSEN AND D. WILENCHIK 12 REGARDING SAME REVIEW COURT’S ORDER DENYING 13 12/14/23 MAB 0.10 $17.50 PLAINTIFF'S MOTION TO COMPEL 14 DEPOSITION REVIEW COURT ORDER AND 15 12/14/23 DIW 0.30 $150.00 DISCOVERY ISSUES 16 REVIEW COURT’S DENIAL OF 12/14/23 TQS 1.80 $630.00 PLAINTIFF’S MOTION TO COMPEL 17 DEPOSITION AND EXCHANGE E-MAILS 18 WITH CLIENT REGARDING (.3); BEGIN REVIEWING PLAINTIFF'S RESPONSES 19 TO DEPOSITION QUESTIONS AND 20 REQUESTS FOR PRODUCTION (1.5) OFFICE CONFERENCE WITH T. 21 12/20/23 MCW 1.20 $450.00 SWENSEN REGARDING ORAL 22 ARGUMENT REGARDING DISCOVERY DISPUTE; TELEPHONE CONFERENCE 23 WITH T. SWENSEN AND S. YOUNG 24 REGARDING SAME; TELEPHONE CONFERENCE WITH OPPOSING 25 COUNSEL REGARDING SAME 26 12/20/23 TQS 3.20 $1,120.00 PREPARE FOR AND PARTICIPATE IN HEARING WITH THE COURT 27 REGARDING DISCOVERY DISPUTES 28 (2.2); FOLLOW UP WITH M. WORTHINGTON, D. WILENCHIK, AND 1 CLIENT REGARDING (1.0) 2 1/30/24 DIW 0.30 $150.00 E-MAILS WITH T. SWENSEN AND FROM PLAINTIFF REGARDING MOTION TO 3 DISMISS AND MEET AND CONFER REVIEW AND ANALYZE PLAINTIFF’S 4 3/1/24 MCW 0.70 $280.00 OPPOSITION TO ORDER TO SHOW 5 CAUSE; DRAFT NOTES REGARDING SAME; OFFICE CONFERENCE WITH T. 6 SWENSEN REGARDING SAME 7 EXCHANGE E-MAILS WITH OPPOSING 4/2/24 TQS 0.50 $175.00 COUNSEL (.2); FINALIZE AND FILE 8 MOTION TO EXTEND DEADLINES (.3) 9 (Id. at 8-9.) 10 Defendants argue those entries are not double billing and instead are attorneys and 11 paralegals “familiarizing themselves with the arguments being made by the opposition and 12 the orders and rulings of the Court.” (Doc. 219 at 3.) 13 “Participation of more than one attorney does not necessarily amount to unnecessary 14 duplication of effort.” Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1287 (9th 15 Cir. 2004). The Court finds that the challenged entries are not unnecessarily duplicative. 16 Rather, they demonstrate a common practice of ensuring that all employees participating 17 on a matter remain up-to-date on the litigation. See id. Accordingly, the Court sustains the 18 challenged entries. 19 IV. CONCLUSION 20 Therefore, 21 IT IS ORDERED granting in part and denying in part Defendants’ Application for 22 an Award of Reasonable Expenses as a Sanction Against Certain Plaintiffs. (Doc. 214.) 23 IT IS FURTHER ORDERED that the Plaintiffs listed in the Court’s April 26, 24 2024, Order (Doc. 210) shall reimburse Defendants in the amount of $28,822.75, 25 representing the costs incurred by Defendants to litigate the discovery dispute over 26 Question 26. 27 . . . . 28 . . . . 1 IT IS FINALLY ORDERED that, within 30 days of this Order, Plaintiffs shall pay 2|| to Defendants the sanctioned amount and file a notice of compliance. 3 Dated this 9th day of October, 2024. 4 ‘ . Wichasl T. dh urge Michael T, Liburdi 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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