United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
ANN
AIKEN UNITED STATES DISTRICT JUDGE.
Plaintiff,
Glas-Weld Systems, Inc., moves for an order dismissing all
claims without prejudice and setting the amount of sanctions
against defendants Michael P. Boyle, dba Surface Dynamix, and
Christopher Boyle, Glas-Weld Systems, Inc., Motion for Order
Setting Amount of Sanctions and Dismissing all Claims without
Prejudice ("PL's Mot. Dismiss and Set
Sanctions") (Doc. 272). For the following reasons,
plaintiffs motion is granted in part and denied in part.
BACKGROUND
On July
30, 2015, after describing "the lengthy and convoluted
procedural history of this case and the parties' disputes
[that] [we]re weil-documented by plaintiffs filings and the
docket of record, " this Court granted plaintiffs motion
for sanctions against defendants and ordered that
"defendants shall pay the attorney fees incurred by
plaintiff in seeking to obtain the expert reports during the
time period from April 6, 2015, through May 4, 2015; filing
the motion for order to show cause (doc. 186) and supporting
reply (doc. 202); the motion to continue depositions (doc,
199); and the response in opposition to defendants'
emergency motion to dismiss (doc. 214), " Doc. 217 at
12.
On
October 8, 2015, this Court denied defendants' Motion for
Reconsideration and specifically found that "[c]ontrary
to defendants' assertions, defendants were given notice
and the opportunity to show cause why sanctions should not be
imposed for the failure to follow court orders and produce
expert reports, The responsibilities of following court
orders falls equally on both defendants, and the Court has
explained why sanctions were imposed, " Doc. 226
(emphasis supplied). This Court further found that
"defendants' repeated complaints about plaintiffs
production of damages information has been addressed and does
not excuse defendants' failures in any event."
Id.
On
March 31, 2016, this Court entered an Order holding that the
appropriate amount of sanctions would be determined at such
time that it issued an Order resolving summary judgment, Doc.
253. This case was stayed on October 3, 2016, after Michael
Boyle filed a petition for bankruptcy. Doc. 271. On January
30, 2017, after learning that Michael Boyle's bankruptcy
had been discharged under 17 U.S.C. § 727, plaintiff
filed the instant motion that is presently before this Court.
PL's Mot. Dismiss and Set Sanctions 3 (citing
Id. at Ex. A).
DISCUSSION
Plaintiff
first argues that "in view of Michael Boyle's debts
pursuant to 11 U.S.C. § 727 on or about December 22,
2016, and the fact that Christopher Boyle is believed to no
longer work in the glass repair industry or sell any accused
products, " pursuant to Federal Rule of Civil Procedure
41, the Court should "dismiss all claims in this mater
without prejudice. Id. at 2. Defendants "do not
object to plaintiffs Motion to Dismiss without
Prejudice." Defs.' Resp. to PL's Mot, Dismiss
and Set Sanctions 1 (Doc. 277). Because plaintiffs motion -
insofar as it seeks dismissal of this action without
prejudice - is unopposed by defendants, this Court grants
plaintiffs unopposed motion to dismiss without prejudice.
Plaintiff
next argues that this Court awarded its reasonable
attorneys' fees (doc. 217 at 12) and reaffirmed that both
defendants were liable for these fees (doc. 226) and,
therefore, "the discharge of Michael Boyle's debts
pursuant to 11 U.S.C, §727 does not affect Christopher
Boyle's liability with respect to the award
sanctions" totaling $19, 325.50. Id. at 3
(citing doc. 220). Plaintiff, therefore, asks the Court to
set the amount of fees to be paid by Christopher Boyle.
Id.
Defendants
respond that plaintiff has "failed to draw any
distinction between the defendants, their respective roles in
the sanctioned behavior, and the unequal responsibility for
their respective share of the fees." Defs.' Resp. to
PL's Mot. Dismiss and Set Sanctions 1, This Court finds
defendants' argument unpersuasive. As stated above, this
Court has already explained ad nauseam why sanctions were
imposed and has held that the responsibility of following
this Court's orders "falls equally on both
defendants." The discharge of Michael Boyle's debts
pursuant to 11 U.S.C. §727 does not mitigate Christopher
Boyle's equal liability with respect to the award
sanctions. As such, this Court finds that Christopher Boyle
is responsible for one half of the total sanctions - his
equal share - as calculated below.
In
determining a reasonable attorney fee, the court first
multiplies "the number of hours the prevailing party
reasonably expended on the litigation by a reasonable hourly
rate." Morales v. City of San Rafael, 96 F.3d
359, 363 (9th Cir. 1996) (as amended) (discussing the
lodestar method). After calculating this amount, the court
considers whether it is necessary to adjust the presumptively
reasonable lodestar figure on the basts of twelve
factors[1] set forth in Kerr v. Screen Guild
Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert,
denied, 425 U.S. 951 (1976). Id.
The
court is required to ensure an award's reasonableness,
regardless of whether the opposing party objected to it.
Gates v. Deukmejian, 987 F.2d 1392, 1400-02 (9th
Cir. 1992), The court also possesses "considerable
discretion ... in determining what attorney's fee is
reasonable." Webb v. Ada Cnty., Idaho, 195 F,
3d 524, 526-27 (9th Cir. 1999), cert, denied, 537 U.S. 948
(2002). Accordingly, "the reasonable fee, as calculated
by the district court, may fall short of the actual fee that
the .. . lawyer charges." Corder v. Gates, 947
F.2d 374, 378 n.3 (9th Cir. 1991) (citation and internal
quotations omitted).
Here,
plaintiff seeks $19, 325.0, comprised of: $2, 450 in fees
attributable to James Gale's work over 4.9 hours at $500
per hour; $990 in fees attributable to Rafeal
Perez-Pineiro's work over 2 hours[2] at $495 per hour; $11, 952
in fees attributable to Javier Sobrado's work over 33.2
hours at $360 per hour; $2, 311.50 in fees attributable to
David Stahl's work over 6.9 hours at $335 per hour; and
$1, 521 in fees attributable to work performed by "its
local counsel, Cosgrave Vergeer Kester LLP" over 7.8
hours at $195 per hour.[3] Decl, of Javier Sobrado Regarding
Awarded Fees ("Sobrado Decl") (Doc. 220) 2-3;
Id. Ex. A, B.
In
support of these fees, plaintiff submits that Mr. Gale had 31
years of experience during the relevant time period, Mr.
Perez-Pineiro had 13 years of experience, Mr. Sobrado had 7
years of experience, and Mr, Stahl had 4 years of
experience.[4] Plaintiff makes no assertions and presents
...