Torres v. Cnty. of Columbia

Full title: MICHAEL RUDY TORRES, Plaintiff, v. COUNTY OF COLUMBIA and DEPUTY RYAN…

Court: United States District Court, District of Oregon

Date published: May 19, 2021

3:19-cv-01223-BR (D. Or. May. 19, 2021)

Opinion

3:19-cv-01223-BR

05-19-2021

MICHAEL RUDY TORRES, Plaintiff, v. COUNTY OF COLUMBIA and DEPUTY RYAN DEWS, Defendants.

JUAN C. CHAVEZ BRITTNEY PLESSER ALEXANDER MEGGITT ATTORNEYS FOR PLAINTIFF AARON HISEL LAW OFFICE OF GERALD WARREN AND ASSOCIATES ATTORNEYS FOR DEFENDANTS

ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

JUAN C. CHAVEZ BRITTNEY PLESSER ALEXANDER MEGGITT

ATTORNEYS FOR PLAINTIFF

AARON HISEL

LAW OFFICE OF GERALD WARREN AND ASSOCIATES ATTORNEYS FOR DEFENDANTS

OPINION AND ORDER

ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

This matter comes before the Court on Defendants' Motion (#47) for Imposition of Expenses Under FRCP 37. The Court concludes the record is sufficiently developed, and, therefore, oral argument would not be helpful to resolve this Motion.

For the reasons that follow, the Court GRANTS Defendants' Motion and awards Defendants $7,437 in attorneys' fees.

BACKGROUND

On August 6, 2019, Plaintiff Michael Torres filed a Complaint in which he brings (1) a claim against Columbia County Sheriff's Deputy Ryan Dews for excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983; (2) a claim against Columbia County for failure to train pursuant to 42 U.S.C. § 1983;¹ and (3) a state-law claim against Columbia County for battery.

1 In the parties' February 8, 2021, Joint Status Report Plaintiff noted he “does not intend to proceed” with this claim.

On January 11, 2021, Defendants filed a Motion (#25) to Compel Discovery and Request for Sanctions.

On February 23, 2021, the Court heard oral argument on Defendants' Motion to Compel, granted Defendants' request for sanctions to the extent that the Court granted Defendants leave to file a motion for attorneys' fees and costs incurred by Defendants as a result of Plaintiff's failure to provide discovery, directed counsel to confer for at least one hour every week until the discovery issues were resolved, granted Defendants leave to file an Amended Answer to assert a claim for conduct warranting sanctions beyond discovery costs and attorneys' fees after the close of fact discovery, and amended the fact discovery deadline to May 7, 2021.

On April 16, 2021, the parties filed a Joint Status Report in which they advised the Court that the parties

have continued to confer and work towards resolution of the discovery disputes that exist as directed by the Court. Despite these efforts, there are some records that have still not been produced and it has become known that there are relevant and responsive documents that can no longer be obtained. Through conferral, the parties agree that an appropriate sanction/remedy for the remaining disputes would be to bar plaintiff from seeking damages related to any injuries beyond the date of the incident in question. The parties further agree that plaintiff will not produce evidence at trial of prior shoulder injuries or treatment, with the exception of the surgery he was recovering from at the time of the incident. Limiting trial in this manner sufficiently resolves the remaining discovery disputes the parties have.

Joint Status Report (#45) at 1-2.

On April 27, 2021, Defendants filed a Motion (#47) for Imposition of Fees Under FRCP 37. The Court took Defendants' Motion under advisement on May 13, 2021.

STANDARDS

Defendants seek attorneys' fees pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), which provides when a court grants a motion to compel or when

the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . 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.

Emphasis added. “Courts have wide discretion to impose appropriate sanctions under Rule 37." Finazzo v. Haw. Airlines, No. CV 05-00524 JMS LEK, 2007 WL 1876072, at *5 (D. Haw. June 27, 2007)(citing United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369 (9^th Cir. 1980)).

DISCUSSION

I. Defendants are entitled to reasonable attorneys' fees.

In their Motion Defendants seek attorneys' fees in the amount of $7,437, which Defendants “incurred in making [their]

Motion to Compel and plaintiff's related failures to engage in the discovery process.” Defs.' Mot. at 1. Defendants note they spent nearly a year “trying to extract relevant discovery from plaintiff through his counsel” before Defendants filed their Motion to Compel. Defendants at times “received nothing from Plaintiff, ” at other times received “nothing [from Plaintiff] until the Court was going to be involved, ” and sometimes were given “deceptive and verifiably false responses” from Plaintiff. Defendants also note this conduct continued after the Court directed counsel to confer for one hour each week. For example, defense counsel states in his Declaration:

One of the primary issues surrounded plaintiff's medical records and his inconsistent responses during discovery about what treatment he has even had. Since the Court's Order, plaintiff had another surgery on his arms and shoulder. Plaintiff did produce records related to this procedure. This brought the total number of procedures known through discovery to approximately 5. On April 7, 2021, counsel for the parties arranged to do an inspection of plaintiff's Facebook page as part of the conferral of the ongoing discovery disputes. The manner in which this was conducted was virtually through Zoom. Mr. Chavez had access to Mr. Torres' account on his end and shared the screen with me so that I could view, but not interact with plaintiff's account. During this inspection, plaintiff accessed the same account and posted several pictures of himself in various stages of recovery from medical procedures - at least one of which had not been disclosed during discovery - with the caption: “15 surgical procedures later! And this doesn't even count the ones in Mexico!” Never had plaintiff disclosed any surgeries in Mexico, nor anywhere close to 15 surgical procedures.

The inspection of plaintiff's Facebook account also showed that plaintiff had manually changed the URL address for his account from facebook.com/whatmutufuka to facebook.com/ mylifemattersyourlifematters. This change made the URL he had disclosed during discovery no longer accessible. I am highly suspicious that plaintiff deleted numerous amounts of material from his account to avoid its discovery or disclosure but cannot prove this to be the case, with one notable exception. Many of the photos plaintiff posted to Facebook while the April 7, 2021 inspection was taking place had been produced in response to a request for his prior posts to Facebook. However, during the inspection of his Facebook account these photos had been deleted from his account.

* * *

Plaintiff initially responded to Interrogatory No. 14 indicating that he and a Ms. Stossel, whom he lived with during the events in question, had been involved in a dissolution proceeding in Florida but did not provide the case number or date of the filing. Plaintiff then testified at his deposition that he has never been married. This issue remained unresolved at the time of the Motion to Compel. During subsequent conferral, on March 12, 2021, plaintiff's counsel asserted plaintiff had never been married but that he would contact counsel in Florida to inquire about the nature of the action referred to in the original Interrogatory response. Notwithstanding these assurances, even after the Court had granted the Motion to Compel, and hours of conferral, nothing was ever produced. Subsequently, I have been able to independently identify the following Florida cases involving plaintiff, which show every response provided to date was materially false. Plaintiff was previously married but not to Ms. Stossell. He was involved in an action involving himself and Ms. Stossell, but it was a criminal battery charge against plaintiff with Ms. Stossell as the listed victim.

Decl. of Aaron P. Hisel at ¶¶ 8-10 (citations omitted).

In his Response to Defendants' Motion Plaintiff states he “does not oppose Defendants' Motion . . . in the amount claimed.”

The Court concludes on this record that Plaintiff's conduct “necessitated the motion . . . to pay [Defendants'] reasonable expenses incurred in making the motion, including attorney's fees.” The Court also concludes Defendants filed the Motion only after attempting to obtain the discovery in good faith, that Plaintiff's nondisclosure was not substantially justified, and that there are not any other circumstances that would make an award of expenses unjust. Accordingly, the Court concludes on this record that Defendants have established they are entitled to reasonable attorneys' fees pursuant to Rule 37(a)(5)(A).

II. Defendants are entitled to attorneys' fees in the amount of $7,437.

Defendants seek attorneys' fees for attorney Aaron Hisel at a rate of $185 per hour. Plaintiff concedes the hourly rate requested for Hisel is reasonable. Nevertheless, the Court has an independent duty to review a motion for attorneys' fees for reasonableness. See Gates v. Deukmejian, 987 F.2d 1392, 1398 (9^th Cir. 1992). See also Cruz v. Alhambra Sch. Dist., 282 Fed.Appx. 578, 580 (9^th Cir. 2008)(The district court has an "obligation to articulate . . . the reasons for its findings regarding the propriety of the hours claimed or for any adjustments it makes either to the prevailing party's claimed hours or to the lodestar.").

A. Standards

Courts use the lodestar method to determine whether the amount of attorneys' fees requested is reasonable. See Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9^th Cir. 2013); Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9^th Cir. 2008). Under the lodestar method the court first determines the appropriate hourly rate for the work performed and then multiplies that amount by the number of hours properly expended in doing the work. Perdue v. Kenny A., 130 S.Ct. 1662, 1671-73 (2010). Although "in extraordinary circumstances" the amount produced by the lodestar calculation may be increased, "there is a strong presumption that the lodestar is sufficient." Id. at 1669. See also Summers v. Carvist Corp., 323 Fed.Appx. 581, 582 (9^th Cir. 2009)(finding the lodestar amount is presumed to be the reasonable fee). The party seeking an award of fees bears "the burden of documenting the appropriate hours expended in the litigation, and [is] required to submit evidence in support of those hours worked." United Steelworkers of Am. v. Ret. Income Plan For Hourly-rated Emps. of Asarco, Inc., 512 F.3d 555, 565 (9^th Cir. 2008)(quotations omitted). When "determining the appropriate number of hours to be included in a lodestar calculation, the district court should exclude hours 'that are excessive, redundant, or otherwise unnecessary.'" McCown v. City of Fontana, 565 F.3d 1097, 1102 (9^th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).

B. Attorney Hisel's rate is reasonable.

To determine the reasonable hourly rate of an attorney this Court uses the most recent Oregon State Bar Economic Survey published in 2017 as its initial benchmark. Attorneys may argue for higher rates based on inflation, specialty, or any number of other factors.

Defendants request an hourly rate of $185 for the time attorney Hisel spent on this case.

Hisel has been a member of the Oregon State Bar since 2016. He is an associate in the Law Offices of Gerald Warren and Associates, a firm that specializes in insurance-defense litigation. Hisel states in his Declaration that he has spent “almost the entirety of [his] time . . . litigating on behalf of cities and counties in Oregon.” Hisel Decl. at ¶ 6. The Oregon State Bar Economic Survey rates for an attorney with comparable years of practice in Salem is $250 per hour. The Court, therefore, concludes the hourly rate of $185 sought by Hisel is reasonable.

C. The time sought by Defendants is reasonable.

Defendants assert Hisel spent 40.2 hours “attempting to confer, pursuing plaintiff and his counsel for responsive records, providing detailed correspondence as to the discovery failures and inconsistencies, researching the discovery issues, and drafting the Motion to Compel with its supporting evidence.” Defs.' Mot. at 3. Plaintiff does not dispute the time sought by Defendants is reasonable. A review of Hisel's billing record and the Court's understanding of Defendants' difficulties obtaining discovery in this matter support Hisel's expenditure of 40.2 hours on this matter.

Accordingly, the Court awards Defendants' attorneys' fees in the amount of $7,437.

CONCLUSION

For these reasons, the Court GRANTS Defendants' Motion (#47) for Imposition of Expenses Under FRCP 37 and AWARDS attorneys' fees to Defendants in the amount of $7,437.

IT IS SO ORDERED.