United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION FOR
ADMINISTRATIVE RELIEF; DENYING PLAINTIFF'S MOTION TO
STRIKE RE: DKT. NOS. 22, 23
J. DAVILA, UNITED STATES DISTRICT JUDGE
November 22, 2019, Defendant Oak Creek Investments filed a
motion for administrative relief requesting that the Court
order Plaintiff to provide documentation of attorneys'
fees and costs pursuant to General Order 56. Motion for
Administrative Relief and for Monetary Sanctions
(“Mot.”), Dkt. 22. The motion also seeks monetary
sanctions (reimbursement for the costs associated with
bringing this motion) for Plaintiff's refusal to comply
with General Order 56. Plaintiff filed a motion to strike
Defendant's motion for administrative relief, which seeks
an order striking Defendant's motion and opposes
the merits of Defendant's motion. Request to Strike
Defendant's Motion for Administrative Relief and Response
in Opposition (“Mot. to Strike/Opp.”), Dkt. 23.
Defendant filed an opposition to Plaintiff's motion to
strike. Opposition to Plaintiff's Motion to Strike
Defendant's Motion for Administrative Relief (“Opp.
to Mot. to Strike”), Dkt. 25. The Court
GRANTS Defendant's Motion for
Administrative Relief and DENIES
Plaintiff's Motion to Strike.
April 15, 2019, this Court granted the Parties' Joint
Consent Decree for Injunctive Relief, which requires
Defendant to remediate the subject-property by December 31,
2019. See Dkt. 14. Pursuant to the Joint Decree, the
Parties jointly inspected the subject property. After this
inspection, Plaintiff “made a demand in excess of $20,
000 to settle the matter in its entirety, without providing
any fee or costs support.” Mot. at 2. Pursuant to
General Order 56, Defendant requested (on multiple occasions)
that any demand for settlement be supported by documents
demonstrating attorney's fees and costs. Id.
Around September 27, 2019, Plaintiff responded to
Defendant's demands for documentation. Id.
Plaintiff provided a reduced demand but failed to accompany
its counteroffer with “any accompanying fee support
August 26, 2019, Plaintiff filed a notice of need for
mediation. This Court referred the case to mediation and set
November 25, 2019 as the deadline to complete mediation.
preparation of that mediation, and before submitting their
administrative motion, Defendant contacted Plaintiff on
November 6, 2019 to “again demand fee and cost
documents under General Order 56” to allow the parties
ample time in advance of the mediation deadline of November
25, 2019 to review the document and attempt good-faith,
reasonable settlement. Id., Ex. A. Plaintiff's
counsel responded only after Defendant filed its
administrative motion and after the deadline to complete
mediation had passed. Mot. to Strike/Opp., Ex. 1. Defendant
agreed to withdraw its administrative motion if Plaintiff
provided it documentation. Id. Plaintiff seemingly
refused to do this as it filed the motion to strike instead.
Accordingly, as of the date of this Order, Plaintiff has
failed to provide Defendant any documentation (even
a cursory overview of Plaintiff's counsels' billing
rates) and has only provided Defendant a settlement number.
PLAINTIFF'S MOTION TO STRIKE
first argues that this Court should strike Defendant's
motion because it contains information about confidential
settlement negotiations. Mot. to Strike/Opp. at 1-2.
Plaintiff fails to provide any rule supporting its motion to
strike. Based on the briefing, the Court infers that Federal
Rule of Evidence 408 underlies Plaintiff's motion. As a
preliminary matter, Plaintiff's citation to Johnson
v. Holden, No. 50 5:18-cv-01624-EJD (N.D. Cal. May 9,
2019) as support for its proposition that the inclusion of
confidential information warrants striking an entire motion
is misplaced. Johnson v. Holden, only struck the
“portion of Defendants' statements that describe
the settlement negotiations.” Hence, Johnson v.
Holden lacks the expansive application advocated by
as Defendant notes, Federal Rule of Evidence 408, protects
compromise negotiations only if they are “offered to
prove liability for, invalidity of, or amount of a claim that
was disputed as to validity or amount, or to impeach through
a prior inconsistent statement or contradiction.”
Indeed, “at least some communications made in
furtherance of [settlement] negotiations are discoverable, as
Rule 408 permits their use in some aspects of trial.”
Phoenix Solutions Inc. v. Wells Fargo Bank, N.A.,
254 F.R.D. 568, 584 (N.D. Cal. Oct. 22, 2008). As the
Advisory Committee Notes to Rule 408 explain,
“evidence, such as documents, is not rendered
inadmissible merely because it is presented in the course of
compromise negotiations.” Therefore, mere reference to
settlement discussions does not automatically support a
motion to strike.
Defendant's reference to settlement discussions and its
inclusion of a letter discussing settlement negotiations in
its administrative motion is permissible. The purpose of
referencing the discussions was not to prove liability or
apportion fault (as forbidden by Rule 408). Rather, the
purpose was to show noncompliance with General Order 56. This
purpose is not forbidden by Rule 408. Plaintiff presents no
alternative grounds supporting its Motion to Strike.
Accordingly, Plaintiff's Motion to Strike is
DEFENDANT'S ADMINSTRATIVE MOTION
argues that, pursuant to General Order 56(6), it is entitled
to a detailed statement of costs and attorney's fees.
Mot. at 4. General Order 56(6) provides:
If the parties reach a tentative agreement on injunctive
relief, plaintiff shall forthwith provide defendant
with a statement of costs and attorney's fees incurred to
date, and make a demand for settlement of the case in its
entirety (including any additional damages not included in
the Rule 26(a) disclosures). Plaintiff should not
require execution of a formal agreement regarding injunctive
relief as a precondition to providing defendant with the
statement of costs and attorney's fees, and additional
damages. If requested by defendant, plaintiff should