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Shannon Lewis Avery, Sr v. Cdcr Director

April 17, 2013

SHANNON LEWIS AVERY, SR.,
PLAINTIFF,
v.
CDCR DIRECTOR, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING DEFENDANTS' MOTIONS FOR SANCTIONS (Docs. 99, 102.) ORDER FOR PLAINTIFF TO PAY DEFENDANTS' COUNSEL $2,489.00 FOR REASONABLE EXPENSES INCURRED IN BRINGING MOTIONS TO COMPEL

I. BACKGROUND

Shannon Lewis Avery, Sr. ("Plaintiff") is a former state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 16, 2007, in the Northern District of California, and the case was transferred to the Eastern District of California on August 13, 2007. (Docs. 1, 2.) This case now proceeds on Plaintiff=s Second Amended Complaint filed on July 20, 2010, against defendant C/O J. Amaya for retaliation under the First Amendment; against defendant C/O G. Gonzales for inadequate medical care and for failure to protect Plaintiff, in violation of the Eighth Amendment; and on Plaintiff=s related state tort claims. (Doc. 69.)

On April 13, 2012, Defendants filed a motion to compel production of documents by Plaintiff, and for sanctions. (Doc. 99.) On June 25, 2012, Defendants filed a motion to compel Plaintiff's deposition and responses to interrogatories, and for sanctions. (Doc. 102.) On February 27, 2013, the Court issued an order granting Defendants' two motions to compel and requiring Plaintiff to show cause, within thirty days, why he should not be required to pay monetary sanctions under Rule 37 for Defendants' expenses incurred in bringing the motions to compel. (Doc. 118.) The thirty day deadline has expired, and Plaintiff has not responded to the order to show cause.

II. DISCOVERY SANCTIONS -- RULE 37

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides that if a motion to compel is granted, Athe court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.@ Fed. R. Civ. P. 37(a)(5)(A).

A. Defendants' Motions for Sanctions

Defendants request monetary sanctions of $3,439.00 in expenses, including attorney's fees, incurred by Defendants in connection with bringing two motions to compel.

First Motion for Sanctions

In their first motion for sanctions, filed on April 13, 2012, Defendants request monetary sanctions of $1,900.00 for expenses incurred in bringing the motion to compel Plaintiff's production of documents, filed on April 13, 2012. (Doc. 99.)

Emily Y. Wada, counsel for Defendants, asserts that in order to compel production of documents by Plaintiff, she had to prepare the motion to compel, her declaration in support of the motion to compel, and a proposed order, which took approximately 6.6 hours at a rate of $190.00 per hour, for a total of $1,254.00. (Declaration of Emily Wada, Doc. 99-2 ¶9.) In addition, she approximated another 3 hours ($570.00) for the preparation of a reply brief and appearance at the hearing, if necessary, for an adjusted total of $1,824.00. Id.

Mitchell A. Wrosch, counsel for Defendants, asserts that he had to prepare his declaration in support of the motion to compel, which took approximately 0.4 hours at a rate of $190.00 per hour, for a total of $76.00. (Declaration of Mitchell Wrosch, Doc. 99-1 ¶8.)

Thus, the total amount requested in the first motion for sanctions was ...


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