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Barrett v. Negrete

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 19, 2009

STEPHEN J. BARRETT, PLAINTIFF,
v.
CARLOS F. NEGRETE, HULDA CLARK, DBA NEW CENTURY PRESS, DEFENDANTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING PLAINTIFF ATTORNEYS' FEES

On April 7, 2008, the Court conducted a final pretrial conference in the above-captioned case. The parties had filed a proposed pretrial order ("PPTO") that the Court rejected for various reasons as stated on the record. The parties were ordered to jointly prepare and submit a revised PPTO that would address the issues the Court raised. After some discussion about when the parties would be required to submit the revisions based upon their schedules, the parties agreed to a date, and therefore were ordered to file the PPTO by April 14, 2008. On that date, plaintiff filed a unilateral PPTO and a declaration that set forth why it had not been prepared jointly. In his declaration, plaintiff's counsel, David Wilzig, recited and demonstrated his several efforts to work with Carlos Negrete, who is both a defendant and counsel for himself and co-defendant Hulda Clark, to timely prepare the proposed pretrial order. Mr. Wilzig's efforts were to no avail and as noted above, plaintiff filed a timely but unilaterally prepared proposed pretrial order.

At no time did defendants seek an extension of time in which to complete the revised PPTO from plaintiff and/or the Court. Based on defendants' obvious lack of compliance with the Court's Order that the parties resubmit a PPTO in conformity with the Court's direction, defendants were ordered to show cause why sanctions should not be imposed. See Order filed April 15, 2008 [doc. #123]. Defendants filed their response to the order to show cause. [doc. #130] Plaintiff also filed a response in the form of counsel's declaration in support of his request for imposition of sanctions. [doc. #128]

In reviewing defendants' response to the OSC, the Court found that Negrete "ha[d] not fully acknowledged his responsibility for failing to participate in the preparation of a complying pretrial order." (Order filed March 30, 2009 at 3.) The Court further found that Negrete's conduct had been willful and in bad faith and therefore, granted plaintiff's motion for sanctions on Negrete personally for failing to comply with the Court's Order concerning the preparation and submission of a joint PPTO. As a result of the Order granting sanctions, Negrete was ordered to pay all of plaintiff's attorney's fees associated with preparing the first proposed and rejected pretrial order, preparing plaintiff's unilateral pretrial order, appearing at the pretrial conference, and his response to the OSC. Plaintiff was then ordered to provide an itemized statement of attorney's fees for the Court's consideration not later than 10 days from the filing of this Order. Id.

Plaintiff timely filed his itemized statement of attorneys' fees seeking $4,695.00 based on billing rates of $400.00 per hour for David J. Wilzig and $250.00 for a contract attorney, Patricia E. Parker. [doc. #133] Defendant Negrete failed to file an opposition to plaintiff's itemized statement of attorneys' fees. The Court may deem the absence of a response to "constitute a consent to the granting of a motion or other request for ruling by the court." CIV. L.R. 7.1(f.3.c).

Nevertheless, the Court has independently reviewed the itemized statement plaintiff provided and finds he has met his burden of documenting the hours expended and hourly rates for billing.

Hensley v. Eckerhart 461 U.S. 424, 437 (1983). The Court finds plaintiff's requested attorneys' fees reasonable.

Based on the foregoing, plaintiff's request for sanctions in the amount of $4,695.00 is GRANTED. Negrete shall make payment to plaintiff on or before May 29, 2009.

IT IS SO ORDERED.

HON. CATHY ANN BENCIVENGO UNITED STATES MAGISTRATE JUDGE

20090519

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