Free Objection - District Court of Arizona - Arizona

Robert M. Frisbee #018779 FRISBEE & BOSTOCK, PLC 2 1747 East Morten Avenue, Suite 108 Phoenix, Arizona 85020 3 Phone: (602) 354-3689 Fax: (602) 266-7744 4 [email protected] Attorneys for Greg and Linda Hancock
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Meritage Homes Corporation, a Maryland Corporation, formerly d/b/a Meritage Corporation; Hancock-MTH Builders, Inc., an Arizona corporation; Hancock-MTH Communities, Inc., an Arizona corporation d/b/a/ Meritage Homes Construction, Inc.; and Meritage Homes of Arizona, Inc., an Arizona Corporation, Plaintiffs, vs. ) ) ) ) ) ) ) ) ) ) ) Ricky Lee Hancock and Brenda ) Hancock, husband and wife; Gregory ) S. Hancock and Linda Hancock, ) husband and wife; Rick Hancock Homes ) LLC, an Arizona limited liability ) company; RLH Development, LLC, an ) Arizona limited liability company; and ) J2H2, LLC, an Arizona limited ) liability company, ) Defendants, ) and ) ) Greg Hancock, an individual, ) ) Defendant, Counter) Claimant and Third) Party Plaintiff, ) vs. ) ) Steven J. Hilton, an individual; John R. ) Landon, in individual; Larry W. Seay, ) an individual; and Snell & Wilmer, LLP, ) an Arizona professional ) corporation, ) Third-Party Defendants. ) )
Document 269

Case No. CV-04-0384-PHX-ROS

OBJECTION TO BILL OF COSTS AND MOTION TO DEFER IMPOSITION OF SANCTIONS

Case 2:04-cv-00384-ROS

Filed 02/06/2006

Page 1 of 7

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1. Plaintiff's Bill of Costs Is Unreasonable. The Court ordered on January 18, 2006, that Robert Frisbee make objections within seven days to plaintiff's bill of costs. Frisbee does so object, and believes that the bill of costs is overstated by $8,222.50. In fact, the bill of costs is so overstated that no fees and costs should be awarded at all. The explanation of why the claimed fees and costs are excessive is attached hereto as Exhibit A. 7 Moore's Federal Practice (3d Ed), § 37.23[6] states: "Sanctions imposed against a party or attorney responsible for taking a position that the court rejected * * * are

limited to the reasonable expenses incurred in connection with the motion, including attorney's fees." See, e.g., Foxley Cattle Co. v. Grain Dealers Mut. Ins. Co., 142 F.R.D. 677, 681 (S.D. Iowa 1992), where the court disallowed various fees and expenses not related to the motion to compel. Moreover, the court must closely examine fees and expenses to assure both reasonableness and relation to the dispute. See, e.g., Am. Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 178 (D.Mass. 1985)(amount of attorney time reduced from 13.5 hours to 4 hours); E.E.O.C. v. Accurate Mechanical Contractors, Inc., 863 F. Supp. 828, 834-835 (E.D. Wis. 1994)(attorney time reduced from 22 hours to 5 hours based on needless assistance and uncomplicated nature of dispute); Gordon v. Castle Oldsmobile and Honda, Inc., 157 F.R.D. 438, 439 (E.D. Ill. 1994)(request for 41 hours of attorney's time unreasonable and reduced to 8). A learned discussion of the excessive fee request problem may be found in Brown v. State of Iowa, 152 F.R.D. 168, 174-75 (S.D. Iowa 1993), where a "grossly excessive" fee request for a simple motion to compel was reduced from over $2,000 to just over $300. Indeed, where a fee request is so excessive as to be intolerable, the court may deny the requested fees and expenses entirely as a prophylactic measure. Brown v. Stecker, 612 F.2d 1057 (7th Cir. 1980). Frisbee believes that the fees requested here by Snell & Wilmer
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are of such a nature. They claim that 63.8 hours of attorney and paralegal time were necessary, a solid week and a half of work by four or five persons. In addition to the comments made in Exhibit A some other observations are appropriate. Shortly after the Court's Order of 4-26-05 was appealed to the Ninth Circuit, plaintiff filed its motion for order to show cause on 5-19-05 (Docket # 167). Greg Hancock responded on 5-24-05 that he did not believe that an expensive appeal was "doing nothing" is response to a court order. Also, because plaintiff complained that no request for stay had been sought, he asked for just such a stay (Docket # 173). On 5-31-05 the Court issued its Amended Order, which included recognition of that fact that it should not have ordered Greg Hancock to dismiss his state court claims "with prejudice" (Docket # 174). Plaintiff then filed another memorandum on the same day (Docket #174). Whatever hours were expended on the foregoing matters were both precipitate and unnecessary, as prudence would have dictated simply waiting until the Ninth Circuit ruled before deciding what steps to take. It must also be said that the practice of utilizing three or four lawyers and a paralegal for every case and every issue in that case may be wonderful for hours and billing requirements, but it necessitates entirely redundant and time-consuming "conferring" and "strategizing," as reflected on the bill of costs at issue. Big firm billing practices should not be held to be "reasonable" simply because they exist. 2. The Court Should Defer Imposing Sanctions Until It Rules On Defendants' Motion For Withdrawal Of The Court's Dismissal Order (Docket # 234). In footnote 12 to its January 18, 2005, Order the Court indicated that it would rule

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separately on the above described motion. The subject of that motion, filed on 12-13-05,
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was not only the Court's 4-26-05 Order but also the Court's statement at the oral argument
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on 12-7-05 that its dismissal order was to continue in force. The issue for the Court's
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determination was and is whether the original order, and its continuation, violate the Anti25

Injunction Act, 28 U.S.C.A. § 2283.
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The Court is understandably critical of counsel for his failure to bring the statute to the Court's attention earlier, but the fact is that he simply did not know about it and his research did not discover it. The statute is obscure and only rarely applicable, as is evidenced by the fact that no involved counsel or the Court knew about it in the early stages of the controversy. Otherwise, surely opposing counsel would have pointed it out as a part of their fairness to the tribunal obligation, or the Court would have raised its applicability sua sponte in discussions with counsel. And this counsel recognized instinctively that the order was improper, even though he was unable to articulate the reason by citation to statute. But all of that is irrelevant as to the issue of whether the Court's original dismissal order and its continuation are illegal because of it. To risk brief repetition, it is said in Wright & Miller, 17 Fed. Prac. & Proc. Juris. § 4222, "[I]t is now settled that 28 U.S.C.A. § 2283 is `an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of the three specifically defined exceptions," citing Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 90 S.Ct. 1739, 1743, 398 U.S. 281, 286, 26 L.Ed.2d 234 (1970). Further, "The statute cannot be avoided by framing an injunction as a restraint on a party rather than directly on the state court." County of Imperial v. Munoz, 101 S.Ct. 289, 292, 449 U.S. 54, 58-59, 66 L.Ed.2d 258 (1980). In the recent case of Bennett v. Medtronic, Inc., 285 F.3d 801 (9th Cir. 2002), the Court of Appeals reversed an injunction granted by the trial court issued as a well-meaning effort "to reconcile and foster the parties' ability to litigate their claims," which may have been the Court's motive in this case. Nevertheless, it was held that affirming the injunction "would effectively eliminate parallel or related federal and state proceedings, a result that is at odds with our constitutional structure and the intent of the Act itself." 285 F2d at 808. In candor, the same must be said of the Court's orders in this instance. The point of the foregoing is that it would be fundamentally unjust to grant sanctions
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against only one of the participants to this narrow dispute who were unaware of the AntiInjunction Act prior to a determination of whether the Act applies. And if the Court finds, as it should, that its orders do violate the statute then it is unreasonable to hold counsel in bad faith for instinctively recognizing a faulty order. Alternatively, if the Court rules that the statute is inapplicable, then the underlying orders are reviewable as interlocutory under 28 U.S.C.A. § 1292. 285 F2d at 806. 3. Conclusion. The bill of costs submitted by plaintiff's counsel is excessive, and should be drastically cut or denied entirely as so excessive as to be intolerable. Whatever the Court's decision on that matter, as a matter of fundamental fairness the implementation of any grant of sanctions should abide the Court's decision on the applicability of the Anti-Injunction Act. RESPECTFULLY SUBMITTED this 6th day February, 2006.

\s\ Robert M. Frisbee Attorney for Greg & Linda Hancock VERIFICATION

Robert M. Frisbee hereby attests, subject to the Rules of Civil Procedure and under penalty of possible sanctions, that the statements made and the information contained in the 19 foregoing Objection and Motion are true and correct to the best of my knowledge.
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\s\ Robert M. Frisbee

The foregoing Objection and Motion Cause was electronically filed this 6th day of February, 2006, and copy 24 thereof mailed to the Honorable Judge Silver.
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\s\
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EXHIBIT A - EXCESSIVE FEES Date 5/23/05 Provider ECH (Emma Harty) Description Review Frisbee submission and strategize - had already been reviewed and strategized by GoldFine and Erickson for 4.6 hours Review order to show cause and strategize - had already been reviewed by Goldfine Strategize and confer with litigation team re order to show cause redundant, Goldfine and Erickson already doing same Work on discovery certification issue - not related to dismissal issue Work on discovery certification, order to show cause hearing - not related to dismissal, redundant Work on position paper re certification of discovery issue - note related to dismissal issue Claims 6 hours to prepare a bill of costs, excessive by at least 4 hours Three different lawyers working on the same document, response to request for stay for a total of 12.9 hours - 6 hours reasonable Review order to show cause - it didn't take 36 minutes to review the order in question Correspondence with Mathew re discovery and review additional correspondence re hearing unrelated to enforcement of order Amount

$

487.50

11/17/05
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ECH

234.00

12/06/05
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ECH

253.50 51.00

12/07/05 12/08/05

AAL (Adam Lang) AAL

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51.00

12/08/05
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AAL

323.00 760.00

01/27/06
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AAL

5/23/05 to 5/31/05

DWG (Dan Goldfine), RGE Rick Erickson), DJM DWG

1,800.50

11/17/05

162.50

11/18/05

RGE

123.00

11/28/05
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RGE

Conferring with T. White and filing with Titus - unnecessary and not related to enforcement of order 130.00

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12/06/05

RGE

Conference with Larry Seay re order to show cause hearing - unnecessary Drafting response to Harrison submission, strategy conference with Goldfine - no response ever filed and 4.4 hours excessive - 1 hour ok Attend show cause hearing - did not participate, two lawyers redundant Inform L. Seay regarding hearing and strategy re discovery - T. White could have told Seay, the conversation would not have taken .4, not related

82.00

12/06/05

RGE

697.00 656.00

12/07/05
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RGE RGE

12/08/05

82.00

12/16/05
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RGE MPZ (Paralegal)

Review hearing transcript - already done by Goldfine 143.50 Prepare exhibits for discovery position paper - not related to order enforcement 189.00 Preparing billing statements - already billed by Adam Lang, totally excessive 1,230.00 Lexis likely does not charge a firm the size of Snell & Wilmer $5/minute profit center of at least $3/minute

12/09/05

01/20/05 to MPZ 01/27/05 Computerized Legal Research

765.00

Total excessive charges

$ 8,220.50

Comment: All of the Lexis time is charged to Dan Goldfine, whose entries show much legal research. It is unusual for the partner in charge of litigation to do the research 18 when senior or junior associates are usually tasked with the responsibility at much lower billing rates.
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Unexplained entries: There is a Lexis charge of 33 minutes on May 25, 2005, but there is no corresponding time entry for him on that date. Similarly, there is a Lexis charge for two hours on May 24, 2005, but Goldfine's total billing time that day was 1.1 hours.