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Raymond May v. Lorena Marie

February 7, 2012

RAYMOND MAY, PLAINTIFF,
v.
LORENA MARIE, OFFICIAL NO. 939683, HER TACKLE, APPAREL, BOATS, APPURTENANCES, IN REM; JAMES SKONBERG AND JANE DOE SKONBERG, HUSBAND AND WIFE, IN PERSONAM, DOCKET 74 DEFENDANTS.



The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge

ORDER REGARDING MOTION TO RECONSIDER COSTS AND FEES FOR DISCOVERY VIOLATIONS

In the Court's Order Regarding Motion to Compel Production of Photos and Film or for Application of Spoliation of Evidence Rule at Docket 67, the Plaintiff was awarded costs and fees associated with the depositions of Devon Skonberg and Darren Muller on June 7 and June 9, 2011 and the relevant costs for the filing of Plaintiff's Motion to Compel Production of Photos and Film or for Application of Spoliation of Evidence Rule at Docket 41.

At Docket 70, James Brennan filed his Declaration regarding his relevant costs and fees, totaling $2,887.28. At Docket 71, Steven Gibbons filed the same, with relevant costs and fees totaling $21,708.73.*fn1

Following the issuance of the Court's Order at Docket 73, Defendant filed a Motion for Reconsideration of the Court's November 17, 2011 Order Regarding Costs and Fees for Discovery Violations at Docket 74. The Court granted that Motion at Docket 75 and instructed the parties to file calculations in the Court's Order at Docket 76. Instead of filing calculations, Plaintiff filed Plaintiff's Response to Motion for Reconsideration as to Award of Fees and Costs at Docket 77. Defendant filed a proposed calculation of costs and fees at Docket 78.

I. Procedural History

Here, the Defendant failed to preserve evidence he reasonably should have known was relevant to the case.*fn2 Following a determination that the Defendant failed to comply with discovery rules, the Court issued an order finding that the Defendant should pay reasonable costs and fees associated with Plaintiff's Motion to Compel Production of Photos and Film or for Application of Spoliation of Evidence Rule at Docket 41. The Court granted Plaintiff leave to re-depose Devon Skonberg and Darren Muller in order to determine whether the missing evidence was retrievable and whether the evidence was likely to have captured the collision of the boats, directly effecting the issue of fault.*fn3 The Court ordered the Plaintiff to file summaries of reasonable costs and fees associated with the filing of the Motion at Docket 41 and the depositions.*fn4

The attorneys for the Plaintiff, Steven V. Gibbons and James T. Brennan filed their Declarations at Dockets 70 and 71. The Court waited seven (7) days and then issued its order calculating costs and fees in the amount of $24,596.46 in accordance with the Court's Order at Docket 67. Defendant then filed a Motion to Reconsider.*fn5 After reviewing the filings of both parties regarding reconsideration, the Court makes the following findings regarding reasonable costs and fees related to the filing of Plaintiff's Motion at Docket 41 and the depositions of Devon Skonberg and Darren Muller in June of 2011.

II. Legal Arguments

The Defendant urges the court to employ the "lodestar" method for calculating reasonable costs and fees. In Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, the Supreme Court applied the "lodestar" method to calculate appropriate attorney's fees.*fn6 The lodestar method requires a court to determine "[t]he number of hours reasonably necessary to perform the legal services for which compensation is sought" and then multiple that by a reasonable hourly rate for the attorney who is providing the service.*fn7 In Pennsylvania, the Supreme Court cited their decision in Blum v. Stenson wherein the court found that when an attorney applying for compensation for fees "has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee."*fn8

Defendant urges the court to consider a downward departure from the lodestar calculation arguing that the Plaintiff did not fully succeed in gathering the penalties he sought in his Motion to Compel.*fn9 Defendant cites INS v. Jean*fn10 and Murakami v. University of Alaska*fn11 in support of this request. In INS, the court stated that the district court should consider the relative success of the party applying for costs and fees in the court's determination of the amount.*fn12 In Murakami, Judge Beistline of the Alaska District Court considered "the relative success of the parties" in his determination of costs and fees.*fn13

Plaintiff sought alternative remedies in his Motion at Docket 41. Plaintiff requested the Court apply the Establishment Rule, or Spoliation Doctrine, and make a finding that due to Defendant's failure to preserve evidence, the facts Plaintiff alleges would have been evidenced in the lost videos and images is presumed to be true. Plaintiff also asked for costs and fees associated with the filing of the motion.

Spoilation is the "destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation."*fn14 The court's ability to impose sanctions comes from its "inherent power to control the judicial process and litigation . . . ."*fn15 The Court has already determined that the Defendant should be subject to sanctions for his actions.

The courts may employ a broad range of sanctions for discovery and spoliation violations. In this matter, the Plaintiffs sought the actual missing evidence or, in the alternative, adverse inferences as their preferred remedy.*fn16 Instead, after it became apparent that the Defendant could not now locate the missing evidence, the Court chose to employ the lesser remedy of sanctions. In response to the Motion at Docket 41, the Court did re-open discovery and allow the Defendant one more opportunity to locate the evidence it should have previously discovered and for Plaintiff to re-depose the persons who took the images.*fn17

Examining Defendant's argument regarding Plaintiff's "failure" to prevail on his Motion at Docket 41, it is first notable that Plaintiff "failed" to locate the missing evidence only because Defendant failed to preserve it. Secondly, Plaintiff succeeded in reopening discovery in order to conduct further depositions and give the parties another opportunity to locate the missing images. Finally, the Court did not find that the Defendant acted maliciously in his failure to preserve the missing evidence and so chose to employ the lesser sanction of costs and fees, as opposed to the Plaintiff's preferred remedy of an adverse inference.*fn18 Therefore, Plaintiff only "failed" on one ground, that of a finding that Defendant's actions merited a lesser sanction than the one which was most desired.

Defendant also employs the Court to decease the final award of costs and fees on the basis of "billing judgment" and redundant work by two attorneys. The Court addresses these arguments below.

III. Analysis of Submitted Costs and Fees The Court will re-examine Plaintiff's submitted costs and fees in light of the lodestar analysis and the decisions in INS and Murakami and the analysis contained above. Each itemized entry is detailed below and is determined to the best of the Court's ability based on the applicable law and the pleadings filed by the parties.*fn19

A. Costs and Fees Submitted by James T. Brennan Mr. Brennan practices in Anchorage, Alaska, and is local counsel for Plaintiff in this matter. He has extensive practice experience in admiralty law and charges a fee of $250/hour pursuant to an agreement with Mr. Gibbons and the Plaintiff. The Defendants argue that they should not be required to pay for the work of two attorneys and that Mr. Brennan's tasks should be deemed secretarial and billed at a rate of $175/hour. Plaintiff argues that the figures calculated by the Court in the first Order at Docket 67 should remain undisturbed.

The first prong of the lodestar analysis requires the court to examine the fees submitted for approval. The Court finds that Mr. Brennan's rate of $250/hour is reasonable. The Court spends more time on this topic with respect to Mr. Gibbons in section III (B) below. The same logic and analysis applies to Mr. Brennan's fee. The Court also finds that $175/hour is an appropriate rate for purely administrative tasks. The Defendant suggested this fee amount and Plaintiff did not file a competing suggestion.

The second prong requires the court multiple the fees by a reasonable hourly wage. Mr. Brennan is serving as local counsel pursuant to the Court's approval of Mr. Gibbons' Pro Hac Vice application.*fn20 It is the Plaintiff's prerogative to hire two attorneys to pursue his legal matters. Regarding the rate charged by Mr. Brennan, the Court weighs the nature of his work in each of the following itemized analyses. As to the Defendant's objection to the billings by two attorneys, the Court will consider that issue when making the final fee determination at the conclusion of this order.

1. Fees

Mr. Brennan included entries for fees for the following dates in his filing at Docket 70.

* 3/25/2011: Conversation with Gibbons; Review files re Darren Muller; Notice of Deposition; Subpoena; Service Instructions. Time = 0.58; Amount = $145.00. The Court can find no record of the conversation noted in Mr. Gibbons declaration. This portion of the entry is omitted and will not be compensated.*fn21 As the entry does not specify the breakdown of the time between the five (5) activities noted, the Court determines that each activity listed took 1/5 of the total time listed. As such, the time is reduced by 1/5. Of the remaining tasks, half of the time is deemed administrative and billed at a rate of $175/hour. The remaining time is billed at the attorney rate of $250/hour. Revised: Time = 0.46 hours; Amount = $97.75.

* 3/28/2011: Research re witness fee. Time = 0.20; Amount = $50.00. Presumably, this witness fee research pertains to the fee charged in the costs section of Mr. Brennan's declaration regarding Devon Skonberg. The time billed regarding Defendant Skonberg is not appropriate as the Court granted Defendant's Motion to Quash this deposition (Docket 44). Revised: Time =

0.00; Amount = $0.00.

* 3/28/2011: Conversation with Gibbons; Notice deposition of Devon Skonbert; Subpoena duces tecum; Letter to Skonberg; Arrange Service. Time = 0.50; Amount = $125.00. The time billed regarding Defendant Skonberg is not appropriate as the Court granted Defendant's Motion to Quash Skonberg's Deposition (Docket 44). The conversation with Mr. Gibbons is appropriately billed at the attorney rate of $250/hour. The Court divides the billed time into five parts, allowing for 1/5 of the billed time for the conversation with Mr. Gibbons. Revised: Time = 0.10; Amount = $25.00.

* 3/29/2011: Review motion to compel, declarations, order; Correct typos; Add exhibits. Time = 0.50; Amount = $125.00. The Court believes that this is an appropriate billing and use of attorney time and declines to modify the compensation sought. Revised: Time = 0.50; Amount = $125.00.

* 3/29/2011: Finalize, file pleadings. Time = 0.25; Amount = $62.50. This entry is properly billed as attorney time devoted to the preparation of filing related to Docket 41. Revised: Time = 0.25; Amount = $62.50.

* 3/29/2011: Conversation with VPSO office; Conversation with Kodiak Troopers; letters to Troopers re service of subpoena. Time = 0.42; Amount = $105.00. These tasks are administrative and are more appropriately billed at the rate of $175/hour. Revised: Time = 0.42; Amount = $73.50.

* 3/29/2011: Finalize subpoenas; Notices of depos; Arrange service. Time =

0.16; Amount = $40.00. These tasks are administrative and are more appropriately billed at the rate of $175/hour. Revised: Time = 0.16; Amount = $28.00.

* 3/30/2011: Conversation with Kodiak Troopers; Message, email to private process server. Time = 0.16; Amount = $40.00. These tasks are administrative and are more appropriately billed at the rate of $175/hour. Revised: Time = 0.16; Amount = $28.00.

* 4/1/2011: Conversation with Troopers re serving subpoena. Time = 0.16; Amount = $40.00. These tasks are administrative and are more appropriately billed at the rate of $175/hour. Revised: Time = 0.16; Amount = $28.00.

* 4/5/2011: Conversation with Gobbons re defendant's motion to quash, strategy. Time = 0.25; Amount = $105.00. The Court can find no record of the conversation noted in Mr. Gibbons declaration. In accordance with case law, this entry will not be compensated.*fn22 Revised: Time = 0.0; Amount = $0.00.

C 4/5/2011: Conversation with Gibbons re good faith certificate. Time = 0.16;

Amount = $40.00. Presumably, this conversation is regarding the filing at Docket 54. It is related to Docket 41 and is allowable at the attorney rate as requested. Revised: Time = 0.16; Amount = $40.00.

C 4/5/2011: Conversation with Gibbons. Time = 0.42; Amount = $105.00. The Court can find no record of the conversation noted in Mr. Gibbons declaration.

In accordance with case law, this entry will not be compensated.*fn23 Revised: Time ...


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