Torres v. Rothstein et al, No. 2:2019cv00594 - Document 124 (D. Nev. 2021)
Court Description: ORDER Denying 106 Motion for Reconsideration and Awarding Attorney's Fees as outlined in 93 Memorandum in Support of Award. Defendant has 30 days to pay to Plaintiff $4,670.00.See order for additional instruction and deadlines. Signed by Magistrate Judge Elayna J. Youchah on 1/27/2021. (Copies have been distributed pursuant to the NEF - DRS)
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Torres v. Rothstein et al Doc. 124 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 1 of 14 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 CANDY TORRES, 5 Plaintiff, 6 7 Case No. 2:19-cv-00594-APG-EJY ORDER v. ALLAN ROTHSTEIN and KYLE PUNTNEY, 8 Defendants. 9 10 Pending before the Court is Defendant Allan Rothstein’s Motion for Relief from Order. 11 ECF No. 106. The Court has considered Defendant’s Motion, Plaintiff’s Response (ECF No. 12 120), and Defendant’s Reply (ECF No. 122). Also before the Court is Plaintiff’s Memorandum in 13 Support of Award of Attorneys’ Fees Pursuant to Court Order (the “Memorandum”) (ECF No. 93) 14 arising from the Court’s Order granting, in part, Plaintiff’s Motion for Sanctions, which 15 included an Order to Show Cause (ECF No. 91 at 3-4).1 After being granted an extension of 16 time to do so, Defendant filed his Opposition to Plaintiff’s Memorandum (ECF No. 107) and 17 Response to the Court’s OSC (ECF No. 114). 18 Memorandum. ECF No. 118. I. RELEVANT BACKGROUND 19 20 21 The facts underlying this dispute are familiar to the parties. Thus, the Court summarizes only the procedural background relevant to this Order. 22 23 24 25 26 Plaintiff filed a Reply in Support of her On February 13, 2020, Defendant Allan Rothstein (“Defendant”) filed a Motion to Quash and Protective Order regarding three subpoenas served by Plaintiff (ECF No. 52), which Defendant refiled on February 14 and February 24, 2020, respectively.2 ECF Nos. 53 and 55. Approximately one month later, Defendant’s then-counsel was allowed to withdraw from continued representation of Defendant. ECF No. 66. 27 1 28 2 The Order to Show Cause is sometimes referred to herein as the “OSC.” Defendant Kyle Puntney did not join either of Defendant’s Motions. 1 Dockets.Justia.com Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 2 of 14 1 On May 18, 2020, Plaintiff filed her Motion to Compel seeking an order requiring Defendant 2 to provide dates, times, and locations for the inspection and copying of materials responsive to her 3 Requests for Production 7, 8, and 9. ECF No. 71. In support of her Motion, Plaintiff explained that 4 on October 18, 2019, Defendant agreed to make documents responsive to these requests available 5 for inspection and copying if Plaintiff paid the costs of production. ECF No. 72 at 4. Plaintiff further 6 explained that this arrangement was agreed to; however, neither Defendant nor his former counsel 7 provided Plaintiff with a date on which she could inspect and copy documents. Id. No response to 8 Plaintiff’s Motion to Compel was filed by Defendant. 9 On July 6, 2020, the Court denied Defendant’s Amended Motion to Strike or Quash 10 Subpoenas and Amended Motion for Protective Order, and granted Plaintiff’s Motion to Compel. 11 ECF No. 81. The Order reopened discovery for the limited purpose of requiring Defendant to 12 respond to Plaintiff’s Requests for Production 7, 8, and 9, and allowing the subpoena recipients to 13 respond to Plaintiff’s subpoenas. Id. at 14. The Court also ordered Defendant to provide Plaintiff 14 dates, times, and locations for the inspection and copying of documents responsive to her document 15 requests no later than July 20, 2020. Id. 16 On November 6, 2020, Plaintiff filed a Motion for Sanctions because Defendant failed to 17 comply with the Court’s July 6, 2020 Order. ECF No. 89. Prior to filing her Motion, Plaintiff sent 18 copies of the Court’s July 6, 2020 Order to Defendant by mail and email on July 8 and July 9, 2020, 19 sent a follow-up email reminding Defendant of his duty to produce responsive documents on July 20 19, 2020, and mailed a letter to Defendant on August 10, 2020 seeking a date and time for production 21 of responsive documents. Id. at 5-6. Plaintiff’s attorney submitted a declaration confirming that 22 Defendant did not respond to any of these communications. ECF No. 89-1 ¶¶ 4-6. The legal assistant 23 for Plaintiff’s counsel also placed three calls to Defendant at the number he provided during his 24 October 14, 2020 deposition. ECF No. 89 at 7 (internal citation omitted). Defendant disconnected 25 the first call upon learning it was Plaintiff’s counsel’s office asking about the status of the document 26 production; and, he did not answer two other calls. Id. (internal citations omitted). In light of the 27 above, Plaintiff sought an order from the Court striking Defendant’s Answer or barring Defendant 28 from providing certain evidence from being presented or argued in any motion or at trial. Id. at 2, 2 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 3 of 14 1 7-8. As was true for Plaintiff’s Motion to Compel, Defendant did not file a response to Plaintiff’s 2 Motion for Sanctions. 3 On November 24, 2020, the Court granted Plaintiff’s Motion for Sanctions in part. ECF No. 4 91 at 3. The Court denied Plaintiff’s request to issue an order striking Defendant’s Answer or 5 precluding certain evidence and instead ordered Defendant to pay Plaintiff’s reasonable attorneys’ 6 fees and costs incurred in preparing the Motion for Sanctions. Id. The Order also directed Defendant 7 to show cause, by December 7, 2020, why the additional sanctions Plaintiff requested should not be 8 granted. Id. The Court warned Defendant that “a failure to timely respond to the Order to Show 9 Cause may result in additional sanctions including, but not limited to, the recommendation that 10 Rothstein be precluded from presenting certain evidence in motion practice or at trial or striking 11 Rothstein’s [A]nswer from the record.” Id. at 4. On November 30, 2020, Plaintiff filed her Memorandum in Support of Attorneys’ Fees as 12 13 ordered by the Court. ECF No. 93. 14 On December 7, 2020, Defendant’s new counsel filed his appearance together with a Motion 15 to Extend Time to respond to the Court’s OSC and Plaintiff’s Memorandum in Support of Attorneys’ 16 Fees. ECF Nos. 98 and 99. The Court granted Defendant’s Motion to Extend Time the next day. 17 ECF No. 100. 18 On December 22, 2020, Defendant filed his Opposition to Plaintiff’s Memorandum. ECF 19 No. 107. On December 24, 2020, Defendant filed the instant Motion for Relief from the Court’s 20 Order (ECF No. 113), and his Response to the Court’s OSC (ECF No. 114). 21 II. DISCUSSION 22 A. Defendant’s Motion for Relief from Order (ECF No. 106) is denied. 23 Defendant moves for relief from this Court’s July 6, 2020 Order pursuant to Fed. R. Civ. P. 24 60(b)(1). Id. Rule 60(b)(1) provides that the Court may relieve a party or its legal representative 25 from a final order based on “mistake, inadvertence, surprise, or excusable neglect.” Excusable 26 neglect may exist where a party’s failure to comply with a deadline was negligent. Lemoge v. United 27 States, 587 F.3d 1188, 1192 (9th Cir. 2009). 28 3 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 4 of 14 1 Courts in this Circuit rely on at least four “Pioneer factors” to assess whether neglect is 2 excusable: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its 3 potential impact on the proceedings; (3) the reason for the delay; and, (4) whether the movant acted 4 in good faith. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223-24 (9th Cir. 2000), citing Pioneer 5 Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993). Determining whether 6 neglect is excusable is an equitable decision that takes account of all relevant circumstances 7 surrounding the party’s omission. Pioneer Inv. Servs. Co., 507 U.S. at 395. 8 In addition, a Rule 60(b)(1) motion “must show that the district court committed a specific 9 error.” Straw v. Bowen, 866 F.2d 1167, 1172 (9th Cir. 1989) (internal citation omitted); see also 10 Williams v. Las Vegas Metro Police Dept., Case No. 2:19-CV-01212-APG-EJY, 2020 WL 2045788, 11 at *6 (D. Nev. Apr. 8, 2020) (finding a party did not establish a basis for Rule 60(b)(1) relief because 12 he had “not demonstrated any error, the correction of which would have, or even may have, changed 13 the outcome of this case.”). Finally, a motion for relief is left to the discretion of the trial court. Sch. 14 Dist. No. 1J. Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). 15 1. Defendant does not argue that the Court committed a specific error. 16 Despite the fact that a party “must show that the district court committed a specific error” in 17 a Rule 60(b)(1) motion, Defendant fails to argue the Court erred in ruling on Plaintiff’s Motion to 18 Compel. 3 Straw, 866 F.2d at 1172. Defendant is “not entitled to relief under this section” based on 19 this omission alone. 20 Defendant’s failure to produce responsive documents was not the result of excusable neglect. 21 2. 22 Id. Nonetheless, the Court weighs the four Pioneer factors and finds Defendant’s justifications do not demonstrate that his failure to produce responsive documents was the result of excusable neglect. 23 Defendant argues that he failed to comply with the Court’s Order granting Plaintiff’s Motion 24 to Compel because: (1) he lacked counsel for nine months; (2) he has “numerous disabilities,” 25 3 26 27 28 Defendant alleges that the “Court balanced the need for the information to be disclosed with the burden it would have on” Defendant “without any stated consideration for the burden the disclosure would have as to the privacy of nonparties.” ECF No. 113 at 2. However, Defendant does not argue this was a specific error. And, Defendant offers no case law to suggest it is. The Court did not address the burden the disclosure would have on non-parties because none of the non-parties objected to Plaintiff’s subpoenas. ECF No. 81 at 5-6. The Court also found Defendant lacked standing to object to the non-party subpoenas because his relevance and undue burden arguments did not establish a personal right or privilege with respect to the requested documents. Id. at 6. 4 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 5 of 14 1 including, based on his counsel’s observations, “early sta[g]e dementia” that cause him to work from 2 home; and, (3) he was never provided service of either the Court’s Motion to Compel or the 3 Protective Order, which “would have provided him assurances that his documents would have been 4 secured from inadvertent disclosure in violation of his privacy concerns for his clients.” ECF No. 5 113 at 5-6 ¶¶ 17, 20, 24. Each of these arguments fail. 6 Defendant’s unexplained failure to secure new counsel during a nine-month period does not 7 justify his noncompliance with the Court’s Order to produce responsive documents. Even though 8 Defendant was proceeding pro se, he was not absolved of responsibility to comply with applicable 9 rules and deadlines set by this Court. Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007). 10 Further, Plaintiff explains that Defendant represented himself in the litigation prior to retaining his 11 former counsel, and “worked cooperatively with plaintiff’s counsel, including contributing to the 12 preparation of the initial discovery plan and scheduling order.” ECF No. 120 at 8 (internal citation 13 omitted). 14 Defendant nevertheless contends, through a declaration of his now-counsel, that “[i]t 15 appears” Defendant “thought” responding to Plaintiff’s Motion to Compel was unnecessary because 16 his Motion to Dismiss was granted in part two days after Plaintiff filed her Motion to Compel. ECF 17 No. 113 at 4-5 ¶ 13. However, even if the Court assumes that Defendant mistakenly believed he did 18 not have to respond to Plaintiff’s Motion to Compel and that he did not access the Court’s electronic 19 filing, Plaintiff’s counsel sent Defendant a copy of the Order to Defendant’s email addresses at 20 “allanindianoil@yahoo.com” and “allanindianoil1@gmail.com” on July 9, 2020, and to 21 “allanindianoil@yahoo.com” on July 19, 2020, as confirmed by exhibits Plaintiff submitted to the 22 23 24 25 26 27 28 5 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 6 of 14 1 Court with her Motion for Sanctions. 4 ECF Nos. 89-5 and 89-6. Despite these emails, Defendant 2 did not contact Plaintiff or make any effort to comply with the discovery order. 5 3 Defendant’s newly alleged “disabilities” also do not justify his noncompliance with the 4 Court’s July Order. That is, after almost two years of litigation, and despite representation by 5 counsel through the first year of this case, Defendant now claims that he “walks with an extreme 6 hunch, so that he is nearly permanently bent forward at about 45 degrees. He rides a wheelchair. 7 He has ED and he has dementia.” ECF No. 122 at 2. In contrast, and notwithstanding these 8 allegations, Defendant’s infirmities are belied by the fact that his “disabilities have not prevented his 9 continued real estate brokerage and property management activities”; indeed, his “website indicates 10 that he had an active listing that was rented as recently as October 25th.” ECF No. 120 at 9, citing 11 ECF Nos. 120-7 and 120-8. Further, despite defense counsel’s statement that Defendant “testified 12 to [his disabilities] during his deposition,” defense counsel does not argue that Defendant was unable 13 to be deposed due to any incapacity. ECF No. 122 at 2. Moreover, while Defendant’s counsel states 14 that it “appears [Defendant is] suffering from early stage dementia,” this problem seemed to have 15 manifested itself just two months before the declaration was filed in late December 2020. ECF No. 16 113 at 5 ¶ 17. 17 Further, even if Defendant was at home throughout the COVID-19 pandemic, as so many 18 were and continue to be, and Plaintiff mailed a copy of the July 6, 2020 Order to Defendant’s office, 19 it is worth repeating that Plaintiff emailed the same Order to Defendant on two occasions. ECF Nos. 20 89-5 and 89-6. There is simply no justification or logic supporting the contention that Defendant 21 did not receive these emails, let alone, as described above, that he would receive the Court’s Order 22 23 4 24 25 26 27 28 On June 26, 2019, Defendant emailed his revisions to the proposed Discovery Plan and Scheduling Order to Plaintiff’s counsel from his “allanindianoil@yahoo.com” email address. ECF No. 120-2 at 2. In his Motion to Withdraw as Counsel of Record, Defendant’s former counsel provided “allanindianoil@yahoo.com” and “allanindianoil1@gmail.com” as Defendant’s last known email addresses. ECF No. 65 at 3 ¶ 6. Defendant admitted in deposition that he uses both email addresses and that he “tr[ies] to look at the Yahoo email daily unless [he is] sick or very busy.” ECF No. 89-4 at 6, 9. 5 It is curious that Defendant contends, also through counsel’s declaration, that Defendant apparently received the Court’s electronically filed Order granting, in part, his Motion to Dismiss, which was filed on May 20, 2020 when he was unrepresented, but somehow did not receive the Court’s July 6, 2020 electronically filed Order granting Plaintiff’s Motion to Compel that included the OSC. Compare ECF No. 113 at 4-5 ¶¶ 13-14 and ¶ 17. 6 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 7 of 14 1 regarding his Motion to Dismiss filed electronically, but not the Order on Plaintiff’s Motion to 2 Compel also filed electronically. 6 3 Finally, with respect to the Protective Order that Defendant contends he never received, the 4 Order plainly states that it was stipulated to by “Plaintiff Candy Torres and defendant Allan 5 Rothstein.” ECF No. 48 at 1. Thus, there is no doubt Defendant was aware of the Stipulation. As 6 for Defendant’s contention that his former counsel received a copy of the Protective Order before he 7 withdrew three months later, but that somehow Defendant did not (ECF No. 113 at 10), this is pure 8 argument and is unpersuasive. 7 9 What the Court find persuasive is Plaintiff’s argument that even if Defendant’s “failure to 10 respond to the Court’s order was the result of his concern over third party privacy rights[,] . . . it was 11 incumbent on Rothstein to express that concern to the Court in a timely manner rather than to 12 disregard the Court’s discovery order.” ECF No. 120 at 8. “Ignoring the order of a Magistrate 13 Judge—without even requesting an extension of time before the deadline passes . . . is not excusable 14 neglect.” Local Ad Link, Inc. v. Adzzoo, LLC, Case No. 2:09-cv-01564-GMN-LRL, 2010 WL 15 3636173, at *5 (D. Nev. Sept. 9, 2010). 16 The above demonstrates Defendant fails to demonstrate that his neglect was excusable under 17 any of the Pioneer factors. Pioneer Inv. Servs. Co., 507 U.S. at 395. Plaintiff will be prejudiced if 18 the Court were to set aside its July 6, 2020 Order granting Plaintiff’s Motion for Sanctions that will 19 potentially impact numerous subsequent orders. Plaintiff was diligent in seeking discovery from 20 Defendant, to which Defendant agreed in October 2019, and then ignored for more than a year. 21 Defendant was represented by counsel during approximately six months of this period of time. The 22 Court cannot ignore these facts. As for Defendant’s contention that “no scheduling order” was issued 23 6 24 25 26 27 28 Importantly, a review of Defendant’s filings shows that he does not deny he received the emails. Instead, he argues that “Plaintiff did not produce the email that proves [s]he emailed [the Court’s July 6, 2020 Order] to ALLAN, at any time.” ECF No. 122 at 4 ¶ 15. This is obviously incorrect. Defendant also does not deny that he disconnected the first call and ignored the following two calls he received from Plaintiff’s counsel’s legal assistant inquiring into the status of the document production as ordered by the Court. 7 The Court notes that while defense counsel offers his observations, attorney argument is not evidence. Hurley v. Student Loan Acquisition Auth. of Ariz., et al., (In re Hurley), 258 B.R. 15, 23 (Bankr. D. Mont. 2001) (an attorney's argument is not evidence); Exeter Bancorporation, Inc. v. Kemper Secs. Grp., Inc., 58 F.3d 1306, 1312 n. 5 (8th Cir. 1995) (statements of counsel are not evidence and do not create issues of fact), citing United States v. Fetlow, 21 F.3d 243, 248 (8th Cir. 1994), cert. denied, 513 U.S. 977 (1994). 7 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 8 of 14 1 in this matter, he is again wrong. ECF No. 113 at 9. The Court entered a Scheduling Order on July 2 24, 2019 (ECF No. 16), which it later amended on November 1, 2019, setting February 24, 2020 as 3 the discovery cut off date. ECF No. 40. On March 26, 2020, Defendant’s former counsel filed a 4 proposed Second Amended Stipulated Discovery Plan and Scheduling Order (ECF No. 64), which 5 the Court granted in part by extending the deadline to file dispositive motions and the joint pretrial 6 order, but denied the extension of “all other deadlines.” ECF No. 67. February 24, 2020 has been 7 the operative discovery cutoff date in this action since November 2019. “Discovery closed almost 8 a year ago on February 24, 2020,” which was more than four months after Defendant agreed to 9 produce documents responsive to Plaintiff’s requests. ECF No. 120 at 11 (internal citations 10 omitted). 8 All in all, reversing the outcome of Court Orders will necessarily delay proceedings and 11 may require consideration of a new scheduling order that could lead to additional motion practice. 12 Further, the length of Defendant’s delay weighs against a finding of excusable neglect. 13 Defendant attempts to characterize the length of delay as “minimal,” claiming that “potentially 14 nothing would have happened toward trial,” even if he provided the discovery sought, because of 15 “severe COVID restrictions” in place. ECF No. 113 at 8. However, Defendant agreed to produce 16 responsive documents to Plaintiff’s Requests for Productions on October 18, 2019 (ECF No. 72 at 17 4), and the Court granted Plaintiff’s Motion to Compel these requests on July 6, 2020 (ECF No. 81). 18 As of today’s date, more than a year and three months after Defendant agreed to produce the 19 responsive documents, he has made no documents available to Plaintiff for inspection or copying. 20 ECF No. 120 at 9. Defendant’s justifications for this prolonged delay are simply unpersuasive. 21 Defendant also fails to demonstrate that he acted in good faith. Defendant’s one-paragraph 22 argument on this issue contends that a “lack of familiarity with CM/ECF may be a poor excuse but 23 it doesn’t show bad faith.” ECF No. 113 at 10, citing Lemoge, 587 F.3d at 1197 (finding no bad 24 faith where “errors resulted from negligence and carelessness, not from deviousness or 25 willfulness.”). Defendant’s argument fails because he has not demonstrated that his noncompliance 26 8 27 28 Defendant also argues that Plaintiff’s misdemeanor conviction in the Eighth Judicial District Court has done “as much or more to prejudice her than the 4 months that [Defendant] has not received nor complied with [the Court’s July 6, 2020] Order.” ECF No. 113 at 8. This argument is not well taken. Plaintiff’s conviction in state court has no bearing on whether Defendant demonstrates excusable neglect for his failure to produce responsive documents as ordered by this Court. 8 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 9 of 14 1 was due to mere negligence or carelessness. Defendant’s arguments ignore his continued failure to 2 produce responsive documents as he promised to do even after the Court granted Plaintiff’s Motion 3 to Compel and he retained new counsel. 4 Defendant has not established excusable neglect such that the Court will relieve him from 5 the Court’s July 6, 2020 Order to Show Cause. However, having timely responded to the OSC (ECF 6 No. 114), the Court will grant Defendant one, and only one, opportunity to make all documents 7 responsive to Plaintiff’s Requests for Production 7, 8, and 9 available to Plaintiff. As stated below, 8 failure to comply with the Court’s Order shall result in a recommendation to strike Defendant’s 9 Answer or issue a ruling prohibiting the introduction of certain evidence by Defendant. 10 B. 11 Pursuant to the Court’s Order on her Motion for Sanctions, Plaintiff filed a Memorandum 12 seeking $4,670 in attorneys’ fees and no costs. 9 ECF No. 93 at 1. A court considering the award of 13 reasonable attorneys’ fees assesses the “prevailing market rates” in the District of Nevada, 14 comparing rates charged by “lawyers of reasonably comparable skill, experience and reputation” to 15 those rates requested by the party before the Court. Soule v. P.F. Chang’s China Bistro, Inc., Case 16 No. 2:18-cv-02239-GMN-GWF, 2019 WL 3416667, at *1 (D. Nev. July 26, 2019) (internal citation 17 omitted). This is a two step process. The first step requires the Court to “calculate the lodestar 18 amount” by multiplying the number of hours reasonably expended on the motion at issue “by a 19 reasonable hourly rate.” Id. (internal citations omitted). The second step requires the Court to 20 consider adjusting the lodestar upward or downward, something done “only on rare and exceptional 21 occasions, . . . using a multiplier based on factors not subsumed in the initial calculation of the 22 lodestar.” Id. (internal brackets and citation omitted). The burden is on the plaintiff to establish that 23 the fees she seeks are reasonable. Id. (internal citation omitted). Plaintiff’s Memorandum in Support of Attorneys’ Fees (ECF No. 93) is granted. 24 Plaintiff asks the Court to find hourly rates of $500 for Mr. Christopher Brancart and Mrs. 25 Elizabeth Brancart reasonable. ECF No. 93 at 3. Plaintiff also asks the Court to find an hourly rate 26 of $110 for Mr. Spencer Campbell, a legal assistant at Plaintiff’s law firm, reasonable. ECF No. 93- 27 9 28 Plaintiff states that she “does not seek an award of costs as they were de minimis with respect to this motion.” ECF No. 93 at 5 (internal citation omitted). 9 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 10 of 14 1 1 ¶ 14. To that end, Mr. and Mrs. Brancart submitted declarations stating that they have obtained 2 court ordered fee awards of “$450 per hour for work performed in 2017-19 in the Southern District 3 of Indiana,” “$450 per hour for work performed in 2016-17 in the Southern District of Indiana” in a 4 separate matter, and “500 per hour for work performed in 2014-16 in the Southern District of 5 California.” Id. at 4; ECF No. 93-2 at 4. Although these citations do not necessarily support an 6 award of $500 an hour for Mr. and Mrs. Brancart’s work in the District of Nevada, Plaintiff cites 7 caselaw demonstrating that this District “recently found that $500 per hour is in the upper range of 8 reasonable hourly rates for experienced practitioners in Las Vegas in the District of Nevada.” ECF 9 No. 93 at 2, citing in part Perrong v. Sperian Energy Corp., Case No. 2:19-cv-00115-RFB-EJY, 10 2020 WL 2996063, at *3 (D. Nev. June 4, 2020) (“the upper range of prevailing rates in this District 11 . . . is $500 an hour”), Boca Park Marketplace Syndications Grp., LLC v. Ross Dress for Less, Inc., 12 Case No. 2:16-cv-01197-RFB-BNW, 2020 WL 2892586, at *3 (D. Nev. May 31, 2020) (awarding 13 partners hourly rate of $750 in commercial lease dispute), Telasia, Inc. v. EZ Supply, Inc., Case No. 14 2:14-cv-00399-MMD-GWF, 2015 WL 2095874, at *3 (D. Nev. May 5, 2015) (finding hourly rate 15 of $500 for partner appropriate given his experience and the “Court’s knowledge of the customary 16 rates charged in this community for similar legal services”). Plaintiff also provides authority from 17 the District of Nevada showing that “[h]ourly rates awarded for work by legal assistants or paralegals 18 . . . range from $75 to $125.” Id. at 3, citing LHF Prods., Inc. v. Kabala, Case No. 2:16-cv-0208- 19 JAD-NJK, 2019 WL 7403960, at *8 (D. Nev. Dec. 31, 2019) (“the reasonable hourly rate for 20 paralegals in this district is between $75 and $125”), Bd. of Trs. as Trs. of Nat’l Roofing Indus. 21 Pension Fund v. Von Noorda, Case No. 2:16-cv-00170-JAD-CWH, 2017 WL 9401152, at *2 (D. 22 Nev. Dec. 4, 2017) (finding a $100 hourly rate to be reasonable for “paralegals or legal assistants . . 23 . for this forum”). These citations support an award of $500 an hour for Mr. and Mrs. Brancart’s 24 work, and $110 an hour for Mr. Campbell’s work on the Motion for Sanctions, respectively. 25 The Court also finds Mr. and Mrs. Brancart’s experience commensurate with an award of 26 $500 an hour in attorneys’ fees. Plaintiff explains that both Mr. and Mrs. Brancart have “practiced 27 for over 30 years,” specialized in “federal Fair Housing Act litigation for the past 25+ years,” and 28 charge a usual hourly rate of “$650 per hour.” Id. Mr. Brancart graduated with honors from the 10 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 11 of 14 1 University of Texas School of Law 36 years ago, clerked for the Chief Justice for the Main Supreme 2 Judicial Court, and worked as a staff attorney and later as a supervising attorney at the Legal Services 3 Program in Pomona, California. ECF No. 93-1 ¶ 2. Mr. Brancart further states he has “resolved 4 hundreds of fair housing cases resulting in favorable settlement agreements and consent decrees,” 5 “tried 16 fair housing cases on behalf of plaintiffs,” “volunteer[s] between three and five hours per 6 week advising and training fair housing groups and attorneys . . . on how to investigate or litigate 7 fair housing cases,” “lectured on fair housing topics” at prominent law schools and at bar events, 8 “conducted trainings for federal and state agencies on fair housing laws, litigation[,] and 9 investigation,” and been “recognized as a ‘Civil Rights Hero’ by the California Department of Fair 10 Employment and Housing for [his] work in fair housing” in February 2009. Id. ¶¶ 4-7, 9. Mrs. 11 Brancart graduated from the University of California, Boalt Hall School of Law 36 years ago, clerked 12 for the Chief Justice of the Main Supreme Judicial Court, and worked as an associate at Latham & 13 Watkins before going into private practice with her husband. ECF No. 93-2 ¶¶ 2-3. Mrs. Brancart 14 provides the Court with a lengthy list of cases in which she served as lead counsel in favor of 15 plaintiff-appellants under the federal Fair Housing Act before the Ninth Circuit and the Supreme 16 Court. Id. ¶¶ 4-5. Mrs. Brancart has lectured on fair housing law and litigation for advocates and 17 lawyers in California, “served as a judge for the Stanford Law School moot court competition,” and 18 authored the first chapter of the Rutter Group publication California Fair Housing and Public 19 Accommodations “covering the California Fair Employment and Housing Act’s fair housing 20 provisions.” Id. ¶ 6. Both Mr. and Mrs. Brancart represent that the “Law Foundation of Silicon 21 Valley awarded [their firm] the Honorable Robert F. Peckham Award for Outstanding Public Interest 22 Litigation” in 2004. ECF No. 93-1 ¶ 9; ECF No. 93-2 ¶ 7. 23 The Court also finds an hourly rate of $110 for Mr. Campbell is reasonable. ECF No. 93-1 24 ¶ 14. Mr. Brancart’s declaration explains that “Mr. Campbell has [worked as a legal assistant at his 25 and Mrs. Brancart’s] office since August 2019 after receiving his B.A. from Pomona College in May 26 2019. He assists the attorneys in [Brancart & Brancart] with investigation, communicating with 27 clients, co-counsel and, in this case, with Mr. Rothstein, and preparing and assembling documents 28 for filing with the courts.” Id. 11 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 12 of 14 1 With respect to the amount of time spent on the Motion for Sanctions (ECF No. 89) for which 2 fees and costs were awarded (ECF No. 91), Plaintiff submitted billing records summarizing Mr. 3 Brancart’s 0.8 hours of time “reviewing and revising” the Motion for Sanctions, Mrs. Brancart’s 8.1 4 hours of time “preparing” the Motion, and Mr. Campbell’s 2.0 hours “draft[ing] . . . declarations and 5 compil[ing] . . . relevant exhibits.” ECF No. 93 at 3; see also ECF No. 93-1 at 7 (detailed billing 6 records for work performed by Brancart & Brancart on the Motion for Sanctions). Plaintiff’s Motion 7 for Sanctions included eleven pages of text and a total of 73 pages with all exhibits. ECF No. 89. 8 The Court finds the total number of hours spent on this Motion is reasonable. 9 Defendant does not contest the reasonableness of Plaintiff’s calculation of attorneys’ fees; 10 the experience of Mr. Brancart, Mrs. Brancart, or Mr. Campbell; or, the amount of time these 11 individuals spent preparing the Motion for Sanctions. Rather, Defendant’s sole arguments opposing 12 an award of attorneys’ fees are that (1) “the attorneys [at] Brancart & Brancart do not submit their 13 fee agreement,” and (2) that this law firm appears to have been “hired by Legal Aid and perhaps not 14 directly by the Plaintiff.” ECF No. 107 at 9. As Plaintiff correctly points out, “Local Rule 54- 15 14(a)(3)(G) requires the submission of information as to whether the fee is fixed or contingent. It 16 does not require submission of a copy of the fee agreement.” ECF No. 118 at 8. Plaintiff’s counsel 17 also submitted a declaration stating that “Brancart & Brancart has a retainer agreement with Candy 18 Torres to represent her in this matter and was not retained by Nevada Legal Services.” Id. at 9 19 (internal citation omitted). Accordingly, Defendant’s arguments are without merit. 20 21 22 23 Considering the above, the Court awards Plaintiff $4,670 in attorneys’ fees at $500 an hour for Mr. and Mrs. Brancart and at $110 per hour for Mr. Campbell. C. Additional sanctions are not imposed if, and only if, Plaintiff timely complies with the Court’s July 6, 2020 Order. 24 The Court advised Defendant that failing to respond to the OSC “may result in additional 25 sanctions including, but not limited to, the recommendation that … [he] be precluded from 26 presenting certain evidence in motion practice or at trial or striking … [his] answer from the record.” 27 ECF No. 91 at 4. Defendant’s current counsel made his appearance on the day the response to the 28 OSC was due and timely filed his response to the OSC. ECF No. 114. 12 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 13 of 14 1 Although additional sanctions could be imposed on Defendant for his continued failure to 2 produce the responsive documents as ordered by this Court, the Court grants Defendant one final 3 opportunity to provide Plaintiff with dates, times, and locations for the inspection and copying of 4 materials responsive to her Requests for Production 7, 8, and 9. The dates, times, and locations must 5 be provided within seven (7) calendar days of this Order, and the dates and times must be within 6 fourteen (14) calendar days of this Order. If Defendant fails to provide either date and time required, 7 the Court shall recommend Defendant be precluded from presenting certain evidence in motion 8 practice or at trial, and/or that Defendant’s Answer be stricken from the record. 9 III. 10 11 12 13 ORDER IT IS HEREBY ORDERED that Defendant’s Motion for Relief from Order (ECF No. 106) is DENIED. IT IS FURTHER ORDERED that Plaintiff’s Memorandum in Support of Award of Attorneys’ Fees Pursuant to Court Order (ECF No. 93) is GRANTED in the amount of $4,670. 14 IT IS FURTHER ORDERED that Defendant shall make payment to Plaintiff within thirty 15 (30) court days of this Order unless an objection is filed, in which case the due date for payment 16 shall be set by the Court upon ruling on the objection. 17 IT IS FURTHER ORDERED that Defendant shall provide dates, times, and locations for the 18 inspection and copying of materials responsive to Plaintiff’s Requests for Production 7, 8, and 9 19 within seven (7) calendar days following the date of this Order. 20 IT IS FURTHER ORDERED that the dates, times, and locations for the inspection and 21 copying of the materials responsive to Plaintiff’s Requests for Production 7, 8, and 9 to be provided 22 by Defendant shall be no later than fourteen (14) calendar days following the date of this Order. 23 24 25 26 27 28 13 Case 2:19-cv-00594-APG-EJY Document 124 Filed 01/27/21 Page 14 of 14 1 IT IS FURTHER ORDERED that Defendant’s failure to timely produce responsive 2 documents in accordance with this Order shall result in sanctions including, but not limited to, the 3 recommendation that Defendant be precluded from presenting certain evidence in motion practice 4 or at trial, and/or that Defendant’s Answer be stricken from the record. 5 DATED THIS 27th day of January, 2021. 6 7 8 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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