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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROBERT BONNEVILLE a/k/a WILL

ELLWANGER,

Plaintiff,

v.

KITSAP COUNTY, a municipal corporation,

KITSAP COUNTY HEALTH DISTRICT,

STEPHEN MOUNT, TIMOTHY QUAYLE,

THOMAS WIGGINS, and MICHAEL

BARTH,

Defendants.

Case No. C06-5228RJB

ORDER GRANTING

ATTORNEY FEES

This matter comes before the Court on the Court’s Order (Dkt. 88) regarding Kitsap County

Health District Defendants’ Motion to Compel Plaintiff’s Responses to Interrogatories and Requests for

Production (Dkt. 81, at 6) and Kitsap County Health Defendants’ Memorandum in Support of Award of

Attorney Fees (Dkt. 90). The Court has reviewed all documents filed regarding this motion, has reviewed

the entire file, and is fully advised. 

I. BACKGROUND AND PROCEDURE

On January 30, 2007, Defendants Kitsap County Health District, Timothy Quayle, and Thomas

Wiggins (“Health District Defendants”) filed a Motion to Compel Plaintiff’s Responses to Interrogatories

and Requests for Production. Dkt. 81. As part of that motion, Health District Defendants requested that

the costs of the motion be assessed against the Plaintiff, Robert Bonneville. Dkt. 81, at 6. Health District

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ORDER

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Defendants did not submit an affidavit supporting an award of costs or attorney’s fees.

On February 20, 2007, this Court granted Health District Defendants’ motion compelling Plaintiff

to respond to their interrogatories and requests for production. Dkt. 88. This Court asked Health District

Defendants and Plaintiff to brief the Court as to whether an award of costs and fees would be proper under

Federal Rule of Civil Procedure 37. Id. To support an award of fees and costs, Health District Defendants

submitted Memorandum in Support of Award of Attorney Fees (Dkt. 90) and Declaration of Scott M.

Ellerby in Support of Kitsap County Health District Defendants’ Memorandum in Support for Award of

Costs and Fees (Dkt. 91). Plaintiff has not submitted a response of any kind.

II. DISCUSSION

A. ATTORNEY FEES

1. Award of Attorney’s Fees Standard

The Court may award claims for attorney’s fees. Fed. R. Civ. P. 54(d)(2). In determining what

attorney’s fee is reasonable in a particular case, the court arrives at the “lodestar amount” by multiplying

the number of hours reasonably expended by a reasonable hourly rate. Jordan v. Multnomah County, 799

F.2d 1262, 1265 (9th Cir. 1986) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Once the

number of reasonable hours is determined, the district court must set a reasonable hourly rate considering

the experience, skill, and reputation of the attorney requesting fees. 

In reviewing a claim for attorney’s fees, the court should consider the following factors: (1) the

time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to

perform the legal service properly, (4) the preclusion of other employment by the attorney due to

acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time

limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained,

(9) the experience, reputation, and ability of the attorneys, (10) the undesirability of the case, (11) the

nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v.

Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976). These

considerations are consistent with Washington Rules of Professional Conduct 1.5. 

The fee applicant bears the burden of documenting the appropriate hours expended in the litigation

and must submit evidence in support of those hours worked. Gates v. Gomez, 60 F.3d 525, 534-5 (9th

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Cir. 1995). The party opposing the fee application has a burden of rebuttal that requires submission of

evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts

asserted by the prevailing party in its submitted affidavits. Id. 

2. Health District Defendants’ Request for Attorney’s Fees

Under Fed. R. Civ. P. 37(d), if a party fails to serve answers or objections to interrogatories, the

“court shall require the party failing to act” to “pay the reasonable expenses, including attorney’s fees,

caused by the failure unless the court finds that the failure was substantially justified or that other

circumstances make an award of expenses unjust.” An award of reasonable expenses, including attorney’s

fees, is not available unless the expenses are caused by the failure to comply. See Toth v. Trans World

Airlines, Inc., 862 F.2d 1381, 1385-86 (9th Cir. 1988). Once fees are found to be caused by

noncompliance, the burden of showing substantial justification or special circumstances for the failure to

comply is on the party against whom an award is sought. Hyde & Drath v. Baker, 24 F.3d 1162, 1171

(9th Cir. 1994). Substantial justification has been defined to mean that the discovery request was the

subject of a “genuine dispute” or that “reasonable people could differ” as to the appropriateness of the

requested discovery. Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations omitted).

Health District Defendants argue that Plaintiff’s failure to timely respond was not substantially

justified because Plaintiff failed to offer any excuse for his failure to respond. Dkt. 90, at 2. Additionally,

they argue that Plaintiff has shown a pattern of intentional resistence to legitimate discovery requests. Id.

Health District Defendants point to three separate motions to compel discovery filed by Defendants, all of

which were granted. Id.; Dkt. 85; Dkt. 88.

This Court agrees that an award of reasonable attorney fees and costs is an appropriate sanction for

Plaintiff’s failure to comply with legitimate discovery requests. Plaintiff has shown a pattern of failure to

respond on time or adequately. Currently pending before the Court are several motions relating to

discovery, including a second Motion to Compel Responses to Interrogatories (Dkt. 95) and a Motion for

Sanctions Pursuant to Federal Rule of Civil Procedure 37 (Dkt. 101) for Plaintiff’s alleged failure to

comply with this Court’s previous order to provide all information required under Rule 26(a)(1) (Dkt. 85). 

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Further, Plaintiff has not responded to this Court’s request to provide substantial justification for

his failure to answer or object to interrogatories and to produce documents. Dkt. 88. “If a party fails to

file papers in opposition to a motion, such failure may be considered by the court as an admission that the

motion has merit.” Local CR 7(b)(2). Therefore, given the totality of circumstances and Plaintiff’s failure

to object, an award of monetary sanctions should be granted.

Health District Defendants have requested $1,170.00 in attorney’s fees. Dkt. 90, at 3. Health

District Defendants claim to have billed 5.5 hours of time “in communication with Plaintiff in attempting to

generate discovery responses, filing the motion to compel, and briefing the entitlement to an award of

attorney fees.” Id. They also ask for an award to compensate one hour of addition time they anticipated

needing to respond to Plaintiff’s response. This opinion will now examine the Kerr factors to determine if

this request is reasonable. 

Time and labor: Defendants are represented by Scott M. Ellerby of Mills Meyers and Swartling. 

Dkt. 91. Support staff from the firm have not worked on the motion. Id. The attorney expended 5.5

hours in talking with Plaintiff, preparing and filing the Motion to Compel Plaintiff’s Responses to

Interrogatories and Requests for Production (Dkt. 81), and preparing and filing the Memorandum in

Support of Award of Attorney’s Fees (Dkt. 90) and the supporting declaration (Dkt. 91). Id. The

attorney billed his clients at a rate of $180.00 an hour, which is discounted from his standard hourly rate of

$310.00. Id. The attorney applied his reduced rate to the amount of time spent on the motion so far, and

arrived at a lodestar amount of $990.00. Id. The attorney also added one hour at his reduced rate in

anticipation of preparing a reply to Plaintiff’s response, totaling $1,170.00. Id. 

Novelty of the case and requisite skill: The motion for which Health District Defendants move for

an award of attorney’s fees is not novel. The Motion to Compel included six pages and was supported by

a three page declaration and exhibits. Dkts. 81 and 82. It was not opposed. The Memorandum in

Support of Award of Attorney Fees (Dkt. 90) consisted of four pages (including certificate of service) and

was supported by a two page declaration. Dkt. 90 and 91. The Plaintiff submitted no reply. Moderate

skill was involved in drafting the motion to compel and in attempting to contact Mr. Bonneville to urge

him to respond to the interrogatories and requests for production.

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Preclusion of employment elsewhere, fixed or contingent fee, time limitations, and length of

relationship: Although counsel was unable to work on other cases while he was working on these motions,

there is no showing that this would present a significant hardship. This factor has little impact in

determination of the reasonable fee. There is no evidence in the record regarding the nature of the

fee—fixed or contingent. Counsel has not attested to whether time limitations were imposed on him, nor

has he attested to the length and nature of his relationship with his client.

Customary fee: The attorney has substantial experience and expertise in civil litigation. Dkt. 91. 

He attested that his customary fees for this type of case are commensurate with peer Seattle attorneys. Id.

Therefore, his discounted rate is below the customary rate for peer Seattle attorneys. The Court has no

reason to discredit his assertions. 

Amount involved, obtained, and similar awards: The number of hours spent on the two motions

and in attempting to communicate with the Plaintiff is reasonable. These motions were simple and together

required only 5.5 hours of the attorney’s time. Defendants’ motions were granted. There is no evidence in

the record regarding awards in similar cases.

Experience, reputation: The attorney in this case is experienced and knowledgeable in the area of

civil litigation. He attested that he has maintained an active civil litigation practice in Seattle for twenty

years. Id.

Undesirability of Case: This case is neither desirable nor undesirable. 

Health District Defendants’ request for a total of $1,170.00 in attorneys fees for these two simple

motions is excessive for one reason: Plaintiff never opposed Health District Defendants’ motion, and

therefore counsel did not spend an additional one hour beyond the initial 5.5 hours on this particular

matter. The Court should award a total of $990.00 in attorney fees, which is equal to the sum of $180.00

per hour multiplied by 5.5 hours. Plaintiff should pay the attorney fees to the Health District Defendants

within four weeks of the date of this Order. 

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B. COSTS

Health District Defendants have not identified any taxable costs they may be entitled to under Fed.

R. Civ. P. 54(d)(1). Health District Defendants should submit their cost bills to the clerk of the Court.

 III. ORDER

Therefore, it is hereby,

(1) ORDERED that the Health District Defendants’ Motion to Compel Plaintiff’s Responses

to Interrogatories and Requests for Production (Dkts. 81, at 6) and Health Defendants’

Memorandum in Support of Award of Attorney Fees (Dkt. 90) are GRANTED IN PART. 

(2) Health District Defendants are awarded $990.00. Plaintiff is ORDERED to pay Health

District Defendants’ award of attorney fees. If Plaintiff fails to timely comply with this

Order, the Court may award further sanctions, which may include dismissal of the case. See

Local Rule GR 3(d); Fed. R. Civ. P. 37(b).

(3) The Clerk of the Court is directed to send uncertified copies of this Order to all counsel of

record and to any party appearing pro se at said party’s last known address.

DATED this 22nd day of March, 2007.

ARobert J. Bryan

United States District Judge 

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