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National Abortion Federation v. Center For Medical Progress

United States District Court, N.D. California

August 31, 2017

NATIONAL ABORTION FEDERATION, Plaintiff,
v.
CENTER FOR MEDICAL PROGRESS, et al., Defendants.

          ORDER SETTING AMOUNT OF CIVIL CONTEMPT SANCTIONS

          WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE.

         On July 17, 2017, I issued an order finding defendants Center for Medical Progress (CMP) and David Daleiden and Daleiden's criminal counsel, Steve Cooley and Brentford J. Ferreria (respondents), in contempt for willfully violating the clear commands of the Preliminary Injunction Order (PI), Dkt. No. 354, by publishing and otherwise disclosing to third-parties recordings covered by the PI. Dkt. No. 482 at 21 (Contempt Order). In order to secure those parties' and respondents' current and future compliance with the Preliminary Injunction Order and to compensate NAF for expenses incurred as a result of the violation of my Preliminary Injunction Order, I held CMP, Daleiden, Cooley, and Ferreira jointly and severally liable for: (i) NAF's security and personnel costs incurred as a result of the violations of the PI; and (ii) attorneys' fees incurred as a result of the violations of the Preliminary Injunction, including counsel's efforts to get websites to “take down” the PI materials and the time reasonably incurred in communicating with civil and criminal defense counsel and moving for contempt sanctions. Id. at 22-23. As directed in the Contempt Order, NAF has since submitted detailed records regarding its security costs and attorneys' fees and costs, and defendants/respondents have objected to those requests on both general and specific grounds. Dkt. Nos. 484, 485, 487, 488, 489, 490.

         In this Contempt proceeding, my ultimate purpose is to consider the character and magnitude of “the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.” United States v. United Mine Workers of Am., 330 U.S. 258, 304 (1947). For the reasons discussed below, I set the amount of civil contempt sanctions to be paid jointly and severally by CMP, Daleiden, Cooley, and Ferreira at $195, 359.04, an amount significantly less than sought by NAF but an amount sufficient, I hope, to insure future compliance.[1]

         I. NAF'S COSTS

         A. In general

         As an initial matter, defendants object to the costs NAF seeks to recover, arguing that the costs were not “reasonably” incurred and are not recoverable under NAF's breach of contract claim (the only claim NAF asserted in support of the PI). Defendants' Objections (“Objs.”) [Dkt. No. 487-3] at 7-14.[2] Similar arguments were raised in defendants' response to the OSC and rejected when I issued the Contempt Order. See Dkt. No. 434 at 9-13. Briefly, because the purpose of the civil contempt sanctions is to compensate NAF for the expenses incurred and to encourage defendants and respondents to abide by the PI going forward, the NAF costs that I include in the civil contempt sanctions award do not have to be damages that would flow from the underlying breach of contract claim. As to “reasonably incurred, ” I have already considered this in connection with the Contempt Order and conclude that, in general, the costs NAF seeks to recover were reasonably incurred in response to the violations of the PI Order.

         B. Specific Costs

         According to the Declaration of Melissa Fowler, NAF seeks to recover four categories of costs. First, security costs paid to outside vendors amounted to $28, 176.62, incurred to: (i) uncover and monitor threats made in response to the Preview video and release of PI materials; (ii) complete related research; and (iii) provide personal security services at a NAF-member clinic to a physician featured in the Preview video. Fowler Decl. ¶¶ 3, 4, 6 & Exs. A, C-1, C-2. Second, NAF incurred travel costs of $397.40 to send security staff to conduct an on-site assessment. Id. ¶ 5, Ex. B. Third, it absorbed personnel costs in the amount of $29, 417.96 for staff time diverted from normal duties to address and respond to the disclosures of PI materials. Fourth, it also absorbed “other costs” in the amount of $6, 327.56 for staff travel and meal expenses.

         As to the monitoring and research costs ($5, 150 and $1, 282.50), I conclude that those costs were reasonably incurred and necessarily related to the disclosure of the PI materials. Similarly, the travel expenses ($397.40) were reasonably incurred and necessarily related to the disclosure of PI materials. As to the personnel costs ($29, 417.96), I find that the monitoring done and additional security issues addressed by staff identified in the Fowler Declaration are compensable and were reasonably incurred and necessarily related to the disclosure of the PI materials. The attendance at the Contempt hearing by three NAF staff members is also reasonable and compensable, as in-person testimony may have been (although in the end was not) necessary. The $6, 327.56 in “other costs” including travel time for the three staff to attend the Contempt hearing are reasonable and were necessarily incurred.

         However, I will not include the costs incurred by a NAF-member clinic for security ($21, 744.12) as part of the civil contempt sanctions award. In the Contempt Order, I limited the sanctions to “NAF's security costs.”[3]

         Therefore, NAF's costs in the amount of $42, 575.42 are included in the civil contempt sanctions award.

         II. ATTORNEY'S FEES AND COSTS

         NAF seeks compensation for $280, 482.00 in attorney time and $7, 297.95 in costs incurred as a result of the violation of the PI. Dkt. No. 484 at 5.

         A. Hourly Rate

         Defendants object to the hourly rates requested by NAF's counsel, arguing that the requested rates have not been adequately supported by declaration or citation to cases approving those rates for similarly situated counsel. Defendants suggest, instead, that NAF's counsel should be compensated at the Laffey matrix rates, adjusted upwards by eight percent to account for San Francisco's higher costs. Objs. at 2.[4]

         As an initial matter, neither side addresses whether case law applicable to statutory fee awards applies in the context of setting sanctions for violation of a Court order. I will assume that case law applies. In that context, “[t]he burden is on the fee applicant to produce evidence ‘that the requested rates are in line with those prevailing in the community'” and “[i]n general, ‘[a]ffidavits of the plaintiffs' attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs' attorney, are satisfactory evidence of the prevailing market rate.'” Hiken ...


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