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Glenn Harper v. City of San Jose

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


March 21, 2011

GLENN HARPER,
PLAINTIFF,
v.
CITY OF SAN JOSE, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

E-filed March 21, 2011

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER DENYING PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS [Re: Docket No. 34]

BACKGROUND

Plaintiff Glenn Harper ("Harper"), an African-American police officer with the San Jose Police Department ("SJPD"), filed this action against the City of San Jose (the "City"), the SJPD, 19 and SJPD Chief Robert Davis ("Davis") (collectively, "Defendants") for racial discrimination and 20 retaliation in violation of 28 U.S.C. § 1983. After he was passed over for promotion and complained 21 of racial discrimination to state and federal agencies, Harper was transferred from vice to patrol.

Docket No. 1 ("Complaint") ¶¶ 6-10. He was told that he was being transferred because a 23 subordinate female officer in his unit made a discrimination/harassment complaint against him. Id. ¶ 10. Harper claims that Defendants used the complaint - which was ultimately determined by the SJPD Internal Affairs ("IA") Department to be unfounded - as a pretext to demote him in 26 retaliation for his complaints of racial discrimination. Id. ¶ 12.

Harper served the IA Department with a subpoena for "all internal affairs files and complaints" related to him. Defendants objected to the production of any internal affairs file and any related recorded statements, summaries of statements, and any testimony from SJPD officers about 2 the investigation contained in the file. While Harper has been allowed to personally review the file, Court accepted the parties' stipulation to submit the contents of the internal affairs file in camera to 5 this Court and to brief their respective positions. Docket No. 28.

parties' arguments and declarations in support, this Court ordered the SJPD IA Department to 8 produce, pursuant to a protective order, a copy of the contents of the IA file to Harper. Docket No. 9

Harper now moves under Federal Rule of Civil Procedure 37(a) for an order requiring Defendants to pay the $5,700 in attorneys' fees and costs he accrued in relation to the dispute over the IA file. Docket No. 34. Defendants opposed the motion (Docket No. 49), and Harper failed to 13 file a reply brief. Pursuant to Civil Local Rule 7-1(b), the Court finds the matter suitable for determination without oral argument, and the March 29, 2011 hearing is vacated.

The essence of Harper's argument is that Defendants' objection to producing the contents of the IA file was without "substantial justification," in light of the prior case law. Thus, he argues, Rule 37(a) provides that if a court grants a motion to compel, "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the 21 party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in 22 making the motion, including attorney's fees." FED. R.CIV. P. 37(a)(5).*fn1 However, "the court must 23 not order this payment if: (i) the movant filed the motion before attempting in food faith to obtain 24 the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, 25 or objection was substantially justified; or (iii) other circumstances make an award of expenses 26 unjust." Id.

United States District Court For the Northern District of California

DISCUSSION

Defendants' objection to the production of IA file was not frivolous as Harper suggests.

While it is true that well-reasoned (but non-binding) prior cases have required production of similar materials in similar situations and that this Court ultimately found Defendants' arguments against production to be uncompelling, in making its decision the Court also expressed skepticism about the

IA's file's relevance to this action. Indeed, in its March 17 Order, the Court noted that Harper's argument as to the relevance of the IA file was a tenuous one. This Court does not agree that Defendants' objection to production was not "substantially justified." When the relevance of the 8 discovery sought is such a close call, this Court refuses to order Defendants to pay Harper's 9 attorneys' fees and costs. Harper's motion is denied.

CONCLUSION

Based on the foregoing, Harper's motion for attorneys' fees and costs is DENIED.

United States District Court For the Northern District of California

IT IS SO ORDERED.

C09-05758 JW (HRL) Notice will be electronically mailed to:

Michael J. Dodson cao.main@sanjoseca.gov Nkia Desiree Richardson cao.main@sanjoseca.gov Thomas Kevin Bourke TallTom2@aol.com

Please see General Order 45 Section IX C.2 and D; Notice has NOT been electronically mailed to:

Rizwan Ramzanali Ramji Law Office Thomas K Bourke One Bunker Hill 601 West Fifth Street Eighth Floor Los Angeles, CA 90071-2094

Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court For the Northern District of California


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