Mahtesian v. Snow

Full title: RONALD G. MAHTESIAN, Plaintiff, v. JOHN W. SNOW, et al., Defendants

Court: United States District Court, N.D. California

Date published: Oct 21, 2004

Nos. 03-5372 MMC, 04-1306 MMC, Consolidated Cases, (Docket No. 46) (N.D. Cal. Oct. 21, 2004)

Opinion

Nos. 03-5372 MMC, 04-1306 MMC, Consolidated Cases, (Docket No. 46).

October 21, 2004

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' EX PARTE MOTION TO CHANGE DATE OF HEARING ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND EXPENSES, AND FOR LEAVE TO DEPOSE PLAINTIFF'S COUNSEL ON LIMITED ISSUES OR, ALTERATIVELY, FOR AN EVIDENTIARY HEARING

MAXINE CHESNEY, District Judge

Before the Court is defendants' ex parte motion to change the date of the hearing on plaintiff's motion for attorney's fees and expenses, and for leave to depose plaintiff's counsel on limited issues or, alternatively, for an evidentiary hearing. Also before the Court is plaintiff's opposition to defendant's ex parte motion. Having considered the papers submitted in support and in opposition to the motion, the Court hereby GRANTS in part and DENIES in part, as follows:

1. Defendants' motion to change the date of the hearing on plaintiff's motion for attorney's fees is GRANTED, and the Court sets the following briefing schedule:

a. Defendants' opposition shall be filed and served no later than November 5, 2004.

b. Plaintiff's reply shall be filed and served no later than November 12, 2004.

c. The hearing on the motion is CONTINUED to December 10, 2004.¹

1 November 26, 2004, the date preferred by defendants, is a court holiday, and defendants state they are unavailable on December 3, 2004.

2. Defendants' request for leave to depose plaintiff's counsel is DENIED, without prejudice. Other than citing a general rule of procedure providing that a district court may hear a motion on affidavits, oral testimony or "deposition," see Fed.R.Civ.Proc. 43(e), defendants cite no authority for the proposition that they are entitled to conduct discovery in this post-trial matter. Assuming, the Court has discretion to authorize the requested discovery, defendants fail to demonstrate the need therefor. To the extent defendants assert there exist discrepancies concerning the amount of work performed, as set forth in documents plaintiff's counsel submitted to the Merit Systems Protection Board and to the Court, plaintiff has the burden of reconciling any asserted inconsistency. To the extent defendants contend plaintiff's counsel has not adequately supported the hourly rate to which she claims to be entitled in this matter, plaintiff bears the burden "to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." See Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984); see also Schwarz v. Secretary of Health Human Services, 73 F. 3d 895, 908 (9^th Cir. 1995) (applying Blum standard in Title VII action; holding where plaintiff produced insufficient evidence to show prevailing rate for "similarly qualified lawyers working on a similar type of case," district court did not err by awarding rate based on defendant's evidence as to proper prevailing rate).

3. Defendants' alternative request for an evidentiary hearing is also DENIED, without prejudice, there being no showing at this time that there exist disputed issues of fact warranting a hearing.

This order terminates Docket No. 46.

IT IS SO ORDERED.