United States District Court, D. Nevada
A. LEEN, UNITED STATES MAGISTRATE JUDGE
matter is before the court on defendants' Application for
Attorney's Fees and Costs (ECF No. 63). The court has
considered the application, Supporting Memorandum (ECF No.
64), plaintiff's response (ECF No. 68), defendant's
Reply (ECF No. 71) and the arguments of counsel at the
hearing held January 31, 2017.
Complaint (ECF No. 1) was filed September 1, 2015. It is a
lawsuit for damages arising out of alleged bad faith
practices by and on behalf of petroleum franchisors/refiners
defendants BP West Coast Products, LLC, Tesoro Refining &
Marketing, and Treasure Franchise Company. Plaintiffs assert
claims for violations of the Petroleum Marketing Practices
Act, 15 U.S.C. § 2801 et. seq.; breach of contract;
breach of the covenant of good faith and fair dealing; and
court entered a Discovery Plan and Scheduling Order (ECF No.
30) which initially established an August 25, 2016 discovery
cutoff, and other case management deadlines consistent with
LR 26-1. On August 8, 2016, defendants filed a Motion to
Strike Plaintiff's Expert Report (ECF No. 37), and Motion
to Compel Discovery (ECF No. 39). The court set the matters
for hearing on September 30, 2016. After hearing arguments of
counsel, the court granted in part and denied in part
defendants' motion to compel. Plaintiffs' boiler
plate objections were overruled and stricken, and
supplemental responses fully compliant with Rule 34(b)(2)(B)
& (C) were compelled. The court also required that the
supplemental response indicate whether any responsive
documents were being withheld on the grounds of privilege,
and required plaintiffs to produce a privileged document log
for any withheld documents. The court overruled
plaintiffs' work product objections.
respect to the motion to strike plaintiffs expert, the court
gave the plaintiffs two weeks in which to serve a fully
compliant Rule 26(a)(2)(B) report. The court continued the
hearing, reserving decision on whether the expert report
should be stricken, and what, if any, additional sanctions
should be imposed. However, the court's oral ruling made
it clear that at a minimum, if the plaintiffs produced a
completely compliant expert report, plaintiffs' counsel
would be responsible for the costs of opposing counsel
deposing the expert as well as reasonable costs and
attorney's fees incurred in filing the motion to compel.
status conference was set for October 18, 2016, to address
plaintiffs' compliance with the court's order. The
parties filed a Joint Status Report (ECF No. 58) on October
13, 2016, as directed. The supplemental status report advised
the court that plaintiffs had served a supplemental expert
disclosure; supplemental responses to defendants' first
request for production of documents; a ninth supplemental
Rule 26(a) witness and document disclosure, along with
corresponding documents as part of plaintiffs' responses
to defendants' document requests.
continued to complain about deficiencies with plaintiffs'
supplemental expert report prepared by Mr. Santicola on
several grounds, and argued that the supplemental report
should also be stricken for various reasons. Defendants also
complained about the adequacy of defendants' supplemental
responses to requests for production the court compelled
plaintiffs to produce.
responded to defendants' objections arguing that the
objections about Mr. Santicola's opinions went to the
weight and credibility of his opinions rather than to the
admissibility of his report. With respect to the supplemental
responses to requests for production of documents, plaintiffs
stated that they had identified documents in their care,
custody and control they intended to rely upon to support
their damages claim, including more than 1, 000 pages of
detailed records regarding the financial operation of their
stations which came from the defendants' own system.
Plaintiffs also produced financial statements from the
plaintiff entities, including revenue and expense information
which Mr. Santicola used to develop a detailed calculation of
the plaintiffs' damages. In addition, plaintiffs provided
copies of their monthly bank statements, cancelled checks,
and offered to produce their electronic bookkeeping file for
the defendants' inspection if requested. Counsel for
plaintiffs also represented that any other responsive tax
returns that had not been produced or filed after plaintiffs
initially produced previous returns would be obtained and
October 18, 2016 hearing, the court required the parties to
meet and confer in an effort to agree upon reasonable costs
and attorneys' fees as sanctions for the necessity of
filing the motion to compel. The court indicated that if the
par tie s were able to reach an agreement regarding the
amount of reasonable costs and attorneys' fees, they
should file a stipulation reflecting the agreed-upon amount.
The court set a deadline to file an application for fees and
costs and plaintiffs' response.
sanction for plaintiffs' failure to timely serve a Rule
26(a)(2)(B) compliant expert report the court ordered that
plaintiffs would be responsible for the costs of making Mr.
Santicola available for a deposition. Specifically, the court
ordered that plaintiffs would incur Mr. Santicola's
expert fees for appearing for and preparing for his
deposition, court reporter fees, and the cost of an original
and one copy of the transcript. The court required the
deposition to be scheduled within 30 days of the hearing.
because plaintiffs' expert report's damages opinions
were at odds with testimony of plaintiffs' Rule 30(b)(6)
designee the court also required counsel for plaintiffs to
supplement their damages calculation to clarify the damages
position of their client, and gave defendants 30 days after
the date of plaintiffs' expert deposition to disclose a
rebuttal expert. The Motion to Strike (ECF No. 37) was denied
without prejudice to filing a motion in limine before trial
challenging the admissibility of plaintiffs' expert's
parties were unable to agree on reasonable costs and
attorneys' fees incurred for filing the motion to compel.
Counsel for defendants filed an Application for
Attorneys' Fees and Costs (ECF No. 63) seeking to recover
attorneys' fees and costs incurred for filing the motion
to compel and motion to strike. The application for
attorneys' fees and costs requested $48, 617.98 in total
fees and costs. Plaintiffs filed a response requesting that
the court significantly reduce the amount sought. The
response indicated that plaintiffs did not dispute the
reasonableness of the hourly rate charged by the lawyers who
performed the work for which reimbursement was sought, or
that defendants obtained a favorable result. Rather,
plaintiffs disputed the reasonableness of defense
counsel's expenditure of hours arguing that the legal
issues presented in the two discovery motions were not
particularly novel or difficult, and that defendants'
request for in excess of 170 hours of combined work performed
by 2 partners, 2 associates, and a paralegal was excessive.
response asked the court to significantly reduce the amount
sought as sanctions on several grounds. First, the response
argued that some of the claimed charges related to routine
evaluation of documents or inter-office discussion regarding
case strategies rather than work on the two motions at issue.
Additionally, some of the charges included multiple tasks
blocked into a single entry, making it difficult to evaluate
the reasonableness of the specific charges. Plaintiffs
contend the approximately 57 hours were charged for preparing
the motions, and approximately 48 hours for reading
plaintiffs' opposition and preparing replies was
excessive. Finally, plaintiffs object to the award of any
charges associated with work performed after the first
hearing, which totaled approximately 35 hours. The response
noted that the court declined to strike plaintiffs'
supplemental expert report finding it complied with Rule 26
and that any additional ...