-DAD (TEMP) Graham v. City of South Lake Tahoe et al, No. 2:2010cv02335 - Document 52 (E.D. Cal. 2011)

Court Description: ORDER granting 43 Motion for Sanctions signed by Judge John A. Mendez on 5/24/11; Plaintiff's counsel, including William O'Mara, Stephen Scheerer, and the O'Mara Law Firm, P.C., jointly and severally, are ordered to pay $6,900.00 in fees to City defendants within 10 days of the date of this Order. (Matson, R)
Download PDF
-DAD (TEMP) Graham v. City of South Lake Tahoe et al Doc. 52 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 SIMMONE GRAHAM, aka SIMMONE ADELYN CORAHAM, Plaintiff, 13 v. 14 15 16 THE CITY OF SOUTH LAKE TAHOE, CITY OF SOUTH LAKE TAHOE POLICE DEPARTMENT and TERRY DANIELS, Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:10-CV-2335 JAM-KJM ORDER GRANTING DEFENDANTS’ CITY OF SOUTH LAKE TAHOE, SOUTH LAKE TAHOE POLICE DEPARTMENT, AND TERRY DANIELS AMENDED MOTION FOR RULE 11 SANCTIONS This matter comes before the Court on Defendants’ City of 18 19 South Lake Tahoe, South Lake Tahoe Police Department, and Terry 20 Daniels (“City Defendants”) Motion for Rule 11 Sanctions (Doc. 21 #43) against Plaintiff’s counsel, including William O’Mara, 22 Stephen Scheerer, and the O’Mara Law Firm, P.C. 23 Defendants request that the sanctions take the form of an award 24 of attorneys’ fees in the amount of $6,900.00. 25 counsel opposes the motion.1 The City Plaintiff’s 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for April 19, 2011 and then rescheduled for June 1, 2011. 1 Dockets.Justia.com 1 2 I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff’s Complaint is predicated upon an incident which 3 occurred on August 31, 2008. The California Highway Patrol 4 (“CHP”) stopped Plaintiff as she was driving and caused her to 5 undergo field sobriety testing. 6 mistaken for an intoxicated person when she was actually suffering 7 from multiple sclerosis. 8 pass field sobriety testing. 9 custody at the El Dorado County jail located in the City of South Plaintiff claims that she was Plaintiff was unable to successfully She was arrested and taken into 10 Lake Tahoe. Plaintiff claims she was denied her medication for 11 multiple sclerosis. 12 discrimination based on the ADA, 42 U.S.C. § 1983, and Civil Code 13 § 52.1, in addition to negligence and attorneys’ fees. 14 granted all of the defendants’ motions to dismiss without leave to 15 amend (Doc. #44). Plaintiff sued eleven named defendants for The Court 16 After being served with this lawsuit in late December 2010, 17 counsel for City Defendants claim they continually contacted the 18 O’Mara law firm requesting to be dismissed on the grounds that 19 the City Defendants had no involvement in the stop, arrest, 20 testing, or custody of Plaintiff. 21 for City Defendants, Nira Feeley, contacted counsel for 22 Plaintiff, Stephen Scheerer, via phone. 23 that the City Defendants be dismissed from the lawsuit. 24 Feeley provided Mr. Sheerer with a copy of the Declaration of 25 Kathy Bolinger, Police Records Supervisor, showing that the City 26 Defendants had no involvement in the incident giving rise to 27 Plaintiff’s claim. 28 Plaintiff’s counsel with the motion for sanctions and on March On January 31, 2011, counsel Ms. Feeley requested Ms. On February 10, 2011, City Defendants served 2 1 3, 2011 City Defendants filed the motion for sanctions with the 2 Court. 3 4 5 II. 1. 6 7 OPINION Legal Standard 1. Rule 11 Sanctions Rule 11 requires that pleadings and motions contain 8 allegations and factual contentions which “have evidentiary 9 support,” and the claims and other legal contentions must be 10 “warranted by existing law or by a nonfrivolous argument.” 11 R. Civ. P. 11 (b)(2)-(3). 12 primary focus of Rule 11 proceedings, a district court must 13 conduct a two-prong inquiry to determine (1) whether the 14 complaint is legally or factually baseless from an objective 15 perspective, and (2) if the attorney has conducted a reasonable 16 and competent inquiry before signing and filing it.” 17 v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002) (internal 18 quotations and citation omitted). 19 “to denote a filing that is both baseless and made without a 20 reasonable and competent inquiry.” 21 Securities Litigation, 78 F.3d 431, 434 (9th Cir. 1996). 22 23 24 B. Fed. When, as here, a “complaint is the Christian The word “frivolous” is used In re Keegan Management Co., Claims for Relief 1. Rule 11 Sanctions City Defendants argue that the Court should impose Rule 11 25 sanctions on Plaintiff’s counsel because Plaintiff’s counsel 26 failed to conduct a reasonable and factual inquiry before filing 27 the case and the Complaint only used the collective term 28 “Defendants” when describing the various allegations, thus 3 1 denying City Defendants the ability to ascertain the claims 2 against them. 3 counsel should be sanctioned because they maintained this 4 lawsuit against City Defendants after being made aware that City 5 Defendants had no involvement in the incident. 6 counsel does not oppose City Defendants’ arguments concerning 7 the frivolousness of the Complaint, but instead counters that 8 City Defendants failed to abide by the safe harbor rule. 9 the motion for sanctions was mailed on February 10, 2011, City Defendants also contend that Plaintiff’s Plaintiff’s Though 10 Plaintiff’s counsel claims it was not received until February 11 14, 2011. 12 2011, which is less than 21 days after the alleged receipt of 13 the motion, Plaintiff’s counsel argues that City Defendants 14 failed to properly comply with the safe harbor rule. Since the motion for sanctions was filed on March 3, 15 “The safe harbor provision gives an attorney the 16 opportunity to withdraw or correct a challenged filing by 17 requiring a party filing a Rule 11 motion to serve the motion 21 18 days before filing the motion.” 19 America, Inc. v. Beaulieu of America, LLC, 339 F.3d 1146, 1150 20 (9th Cir. 2003); see Fed. R. Civ. P. 11(c)(1)(A). 21 of Civil Procedure 5(b)(2)(C) states that service may be made by 22 “mailing [a paper] to the person’s last known address – in which 23 event service is complete upon mailing.” 24 since City Defendants mailed the Motion for Rule 11 Sanctions to 25 Plaintiff’s counsel on February 10, 2011 (Doc. #43, Exh. A), and 26 waited 22 days to file the motion on March 3, 2011, City 27 Defendants properly complied with the safe harbor rule. Retail Flooring Dealers of 28 4 Federal Rules The Court finds that 1 Furthermore, the Court finds that Plaintiff’s action 2 against City Defendants was frivolous. The Complaint consisted 3 of vague and indiscernible allegations against City Defendants. 4 The allegations against City Defendants were baseless as City 5 Police records show that Plaintiff was not stopped, arrested, 6 tested or taken into City Defendants’ custody. 7 of Kathy Bolinger, Police Records Supervisor, City of South Lake 8 Tahoe, Exh. B. 9 to the incident in Plaintiff’s Complaint demonstrates that See Declaration The fact that City Defendants have no connection 10 Plaintiff’s counsel failed to comply with their duty to 11 investigate. 12 investigate prior to filing the Complaint, they should have 13 dismissed City Defendants from the suit after being contacted by 14 City Defendants’ counsel and being shown evidence that City 15 Defendants had no involvement in the incident giving rise to 16 Plaintiff’s claims. 17 allegations concerning City Defendants are frivolous and it 18 GRANTS City Defendants’ Motion for Sanctions. Even if Plaintiff’s counsel had limited time to Accordingly, the Court finds that the 19 C. Sanctions in the Form of Attorneys’ Fees 20 City Defendants request sanctions in the form of attorneys’ 21 fees and ask for $6,900.00. Plaintiff’s counsel does not contest 22 that attorneys’ fees are an appropriate sanction but instead asks 23 the Court to reduce the fees based on an unsupported theory in 24 which attorneys’ fees are to be calculated based on the attorneys’ 25 salaries and what they earn per hour. 26 disputes billing items pertaining to Michelle Beckwith and various 27 phone calls. 28 5 Plaintiff’s counsel also 1 Rule 11 allows payment to the movant of part or all of the 2 reasonable attorney’s fees and other expenses directly resulting 3 from the violation. 4 that in order to deter repetition of the conduct promulgated by 5 Plaintiff’s counsel in bringing this frivolous lawsuit, and in 6 order to restore City Defendants to the position they were in prior 7 to defending this lawsuit, attorneys’ fees and costs are the proper 8 form of sanctions. 9 Fed. R. Civ. P. § 11 (c)(4). The Court finds The Ninth Circuit has held that an attorney’s hourly rate is 10 reasonable where it is within the range of salaries of attorneys of 11 comparable experience. 12 Insurance Co., 556 F.3d 815, 826-27 (9th Cir. 2009). 13 Winterrowd, the court stated that a district court is within its 14 discretion in setting an associate attorney’s reasonable hourly 15 rate at $300 because such rate was well supported by evidence of 16 market rates. 17 Patrick Enright, City Attorney, at $250 per hour, and Nira Feeley, 18 Deputy City Attorney, at $195 per hour, are reasonable and within 19 the range of salaries for attorneys with comparable experience. 20 Id. Winterrowd v. American General Annuity In Here, the Court finds that the rates for The Court has reviewed the City Attorneys’ timesheets and 21 finds the billing items reasonable. With respect to Plaintiff’s 22 counsels’ argument that they cannot ascertain the identity of 23 Michelle Beckwith, such confusion would have been resolved if 24 Plaintiff’s counsel had read City Defendants’ Motion to Dismiss in 25 which Michelle Beckwith, Risk Management Coordinator for the City 26 of South Lake Tahoe, submitted a declaration in support of the 27 motion for dismissal. 28 Defendants’ fee motion and orders Plaintiff’s counsel, including Accordingly, the Court GRANTS City 6 1 William O’Mara, Stephen Scheerer, and the O’Mara Law Firm, P.C., 2 pursuant to Rule 11 of the Federal Rules of Civil Procedure, to pay 3 $6,900.00 to City Defendants. 4 5 III. ORDER 6 For the reasons set forth above, 7 City Defendants’ Motion for Rule 11 Sanctions is GRANTED 8 and Plaintiff’s counsel, including William O’Mara, Stephen 9 Scheerer, and the O’Mara Law Firm, P.C., jointly and severally, 10 are ordered to pay $6,900.00 in fees to City Defendants within 11 ten (10) days of the date of this Order. 12 13 IT IS SO ORDERED. 14 15 16 Dated: May 24, 2011 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7