United States District Court, W.D. Washington, Tacoma
ORDER AWARDING SANCTIONS
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Brandon
Austin's (“Austin”) petition for an award of
sanctions. Dkt. 34.
January 31, 2019, the Court granted Austin's motion for
sanctions and requested a petition setting forth the amount
of attorney and expert's fees Austin incurred as a result
of the actions by Defendant Harbor Freight Tools USA,
Inc.'s prior counsel, Robert Spajic
(“Spajic”). Dkt. 33. On February 19, 2019, Austin
filed a declaration and evidence in support of a request for
$57, 508.10 in expert's fees and $8, 100 in
attorney's fees. Dkt. 34. On April 5, 2019, Spajic
responded, objected to the amount of expert's fee, and
conceded the amount of attorney's fees. Dkt. 39. On April
12, 2019, Austin replied. Dkt. 47.
its “inherent powers, ” a district court may
award sanctions against a party or counsel who acts “in
bad faith, vexatiously, wantonly, or for oppressive
reasons.” Primus Auto. Fin. Servs., Inc. v.
Batarse, 115 F.3d 644, 648 (9th Cir. 1997). The amount
of sanctions must be reasonable and only make “the
prevailing party whole for expenses caused by his
opponent's [misbehavior].” B.K.B. v. Maui
Police Dep't, 276 F.3d 1091, 1108 (9th Cir. 2002),
as amended (Feb. 20, 2002) (citing Chambers v.
NASCO, Inc., 501 U.S. 32, 46 (1991)).
case, the Court finds that some of Spajic's objections
have merit and reduces the requested expert's fees. As a
general matter, the Court has reviewed all of Dr. Jesse
Grantham's invoices and finds that the invoices are not
always detailed as to actual activity but often billed in
hour increments. While it was difficult to determine where
overlap of the two relevant torches' examination
activities occurred without more detail from the billing
records or through a declaration, the Court makes its
findings based upon its understanding of (1) that which was
essentially a waste of Dr. Grantham's time and (2) that
which was likely beneficial to Austin's discovery needs
during the testing and evaluation process. Regarding the
actual invoices, the Court finds as follows:
1. Dr. Grantham's billed time on invoice #10760 was to a
significant degree wasted because all work that was done in
relation to the product identification examination
(“PID Examination”) was on the torch model that
Austin was led to believe was #91033 (the “33
Torch”). The PID Examination, however, was performed on
torch model #61589 (the “89 Torch”), a fact known
by the defendant's expert who also knew, along with
Spejic, that Austin had been led to believe it was the 33
torch. These facts are further aggravated by Spajic's
failure to provide Austin with the product information
including manuals that Austin had requested pursuant to the
rules of discovery well in advance of the PID Examination.
Even so, the Court must conclude that since the examination
was made of the 89 Torch that was the actual source of the
alleged injury there must have been some useful information
gained by that examination. The Court finds compensation is
warranted for half the total billing for that invoice, which
is $2, 863.00.
2. With regard to invoice #10831, the Court finds that the
time spent by Dr. Grantham, which was devoted to reviewing
the defense's destructive testing protocol, cannot be
said to have been substantially wasted. It is reasonable to
assume from the record that this protocol did not likely need
to be substantively altered for the destructive testing of
the 89 Torch. However, the work referenced in this invoice
that was devoted to the research of the 33 Torch in
connection with thread evaluation was work that would have to
have been repeated in connection with the 89 Torch. Thus,
Austin is entitled to be compensated in the amount of $1,
795.00 of this invoice.
3. With regard to invoice #10953, the Court views the work as
substantially useful to the ultimate protocol for the
destructive testing of the 89 Torch. No. compensation is made
for this invoiced expense.
4. With regard to invoice #10954, the Court views these
charges as fully compensable. The preparation and attendance
at the destructive testing was virtually useless to Austin.
The defense stood by while Dr. Grantham destructively tested
the 33 Torch, and then the subject 89 Torch was tested but
rendered the necessary replication of the subject torch
impossible. While this test might not have been totally
useless, the fact that the defense did not bring any exemplar
to the test and allowed Austin to do the comparable testing
of the exemplar of the 33 Torch that Austin brought goes to
the heart of the defense's egregious conduct. All this
work had to be redone with the exemplar 89 Torch. The entire
amount of this invoice, $9, 826.85, is compensable.
5. Invoice #10955 represents work of Dr. Grantham after the
October 18th destructive testing. While, some of the
information coming out of the testing of the 89 Torch was
arguably useful, for the same reasons given on the previous
invoice this entire invoice is compensable in the amount of
6. With regard to invoice #11080, the Court concludes that
some of this work was ultimately useful. Although it was
infected with many of the same problems with other work
regarding the review of testing the wrong torch, the Court
cannot find that more than 50% of that work was of little or
no use to the plaintiff. Therefore, one half of the invoice
in the amount of $5, 687.50 is compensable.
7. With regard to invoice #11105, the Court finds itself
agreeing with the points made by both parties. Much of the
work reflected in this invoice was useful to Austin in
connection with the destructive testing of the subject 89
Torch. Yet, Austin was frustrated in his efforts to correct
the problems that were caused by the discovery violations.
The Court finds that most of the work was useful to Austin
but some fraction of this invoice, which is hard to precisely
measure here, was for work incurred because of the deceptions
that delayed the expert report aspect of discovery. The Court
finds that the portion of that work which was not useful is
not less than 25%. Thus, the compensation due on this invoice
is $5, 500.12.
the total compensation due Austin for Dr. Grantham's work
is $28, 892.97. With the addition of the uncontested
attorney's fees of $8, 100.00, Austin is awarded a total
of $36, 992.97 from Spajic.