United States of America v. LCL Administrators, Inc. et al
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 6/14/2011. Plaintiff's unopposed 23 Motion to Compel Initial Disclosures is DENIED as MOOT and GRANTED as to Motion for Sanctions. Defendants and their attorney shall pay total of $356 in attorney fees for time spent preparing Motion w/in 14 days after Order is filed. Check shall be made payable to US Treasury. (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Plaintiff,
No. CIV S-10-2644 LKK DAD
v.
LCL ADMINISTRATORS, INC.,
ELEANOR J. GOOD, and
LORETTA A. MIGLIORI,
Defendants.
ORDER
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This case came before the court on April 22, 2011, for hearing of plaintiff’s
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motion to compel initial disclosures and for sanctions (Doc. No. 23). Adair Ford Boroughs, Esq.
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appeared for plaintiff. Matthew D. Pearson, Esq. appeared for defendants.
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Plaintiff’s counsel advised the court that defendants’ initial disclosures were
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provided to her 45 minutes prior to the scheduled hearing time, rendering the motion to compel
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moot. Plaintiff requested costs for bringing the motion. The court directed counsel to file a
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declaration in support of costs, and such a declaration was timely filed on April 26, 2011.
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“If a party fails to make a disclosure required by Rule 26(a), any other party may
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move to compel disclosure and for appropriate sanctions.” Fed. R. Civ. P. 37(a)(3)(A). “If the
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motion is granted – or if the disclosure . . . is provided after the motion was filed – the court
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must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated
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the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable
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expenses incurred in making the motion, including attorney fees.” Fed. R. Civ. P. 37(a)(5)(A).
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Here, the motion to compel reflects that plaintiff attempted in good faith to obtain
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defendants’ initial disclosures before filing a motion to compel them. See Pl.’s Mot. to Compel
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(Doc. No. 23) at 2; Fed. R. Civ. P. 37(a)(5)(A)(i). Defendants did not file written opposition to
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plaintiff’s motion and acknowledged at the hearing that the initial disclosures were long overdue.
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Counsel’s vague reference to “a breakdown on our end” does not constitute substantial
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justification for the delay. See Fed. R. Civ. P. 37(a)(5)(A)(ii). The court finds no other
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circumstance that makes an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii).
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The Declaration of Adair Boroughs (Doc. No. 26) documents motion-related costs
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of $703.16. This amount includes $356.00 for two hours of attorney time at $178 per hour. The
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rate is the $125.00 rate authorized in the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(A),
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as adjusted for inflation. The amount also includes $347.16 for travel costs, which plaintiff
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apportioned among the hearing on the motion to compel and three depositions taken during the
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three days that preceded the motion hearing. The travel costs are comprised of one fourth of the
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cost of airfare from Washington, D.C. ($105.20), one fourth of the hotel expense ($115.47), one
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fourth of the car rental ($53.49), parking at the courthouse on the day of the hearing ($12.00), and
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one day of per diem ($61.00). However, as indicated at the hearing, the undersigned declines to
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award travel costs in light of the fact that plaintiff’s counsel could have appeared telephonically
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for hearing of the unopposed motion and because counsel’s travel was apparently necessitated, in
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part, by other scheduled hearings and depositions.
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Good cause appearing, IT IS ORDERED that:
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1. Plaintiff’s unopposed motion to compel initial disclosures and for sanctions
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(Doc. No. 23) is denied as moot with regard to the motion to compel and granted as to the motion
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for sanctions;
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2. Defendants and their attorney shall pay to the United States a total of $356.00
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in attorney fees for the time spent preparing the motion and attending the hearing on April 22,
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2011; and
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3. Defendants and their attorney shall send a cashier’s check payable to the
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United States Treasury, for $356.00, to the U.S. Department of Justice, Tax Division, P.O. Box
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310, Ben Franklin Station, Washington, D.C. 20044, within 14 days after this order is filed.
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DATED: June 14, 2011.
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DAD:kw
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