United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION FOR
S.C. Chang United States Magistrate Judge.
the Court is Defendant Air Ventures Hawaii, LLC's
(“Defendant”) Motion for Attorney's Fees,
filed July 27, 2017. Plaintiff Katrina Rucker
(“Plaintiff”) did not file an opposition to
Defendant's Motion. After careful consideration of
Defendant's submissions and the applicable law, the Court
HEREBY GRANTS the Motion for the reasons stated below.
April 14 and 18, 2017, Plaintiff mailed (via certified mail)
subpoenas to Defendant,  commanding the production of documents
by April 28, 2017. The subpoenas were addressed to
Defendant's (1) General Manager Jill Briley; (2)
liability insurance company adjuster Shari Thompson; and (3)
pilots Eric Johnson, Brian Fitchett, Paul Fulghum, and Harry
Dalsay. With respect to Messrs. Johnson, Fitchett, Fulghum,
and Dalsay, the subpoenas requested “[a]ll school
records (elementary to present), all psychological
evaluations, church records, military records, a fifty year
employment history list, and all safety training classes
attended. Bank records January 2014 to present.” Doc.
No. 91, Ex. A. The same information was requested of Ms.
Briley, along with 39 additional categories of documents.
28, 2017, this Court issued an Order Granting (1)
Defendants' Motion to Quash Plaintiff's Subpoenas
Dated April 14, 2017 and (2) Starr Adjustment Services,
Inc.'s Motion to Quash Subpoena Dated April 18, 2017
(“Order”). Doc. No. 110. The Court quashed
multiple subpoenas because Plaintiff failed to obtain the
signature of the Clerk of Court; she failed to personally
serve the subpoenas; and the subpoenas were unduly burdensome
and failed to allow reasonable time to comply.
requests $1, 845.00 in attorneys' fees against Plaintiff
due to her violation of Federal Rules of Civil Procedure
(“FRCP”) 26(g)(1)(B) and 45(d)(1). FRCP 45(d)(1)
A party or attorney responsible for issuing and serving a
subpoena must take reasonable steps to avoid imposing undue
burden or expense on a person subject to the subpoena. The
court for the district where compliance is required must
enforce this duty and impose an appropriate sanction--which
may include lost earnings and reasonable attorney's
fees--on a party or attorney who fails to comply.
Fed. R. Civ. P. 45(d)(1). FRCP 45(d)(1) sanctions are
discretionary, Legal Voice v. Stormans, Inc., 738
F.3d 1178, 1185 (9th Cir. 2013), and “courts have
discretion over the type and degree of sanction
imposed.” Mount Hope Church v. Bash Back!, 705
F.3d 418, 425 (9th Cir. 2012). One form of permissible
sanction is payment of the opposing counsel's
attorneys' fees. Id.
is not exposed to sanctions merely because it has lost a
motion to compel. Legal Voice, 738 F.3d at 1185
(citing Mount Hope Church, 705 F.3d at 425-27).
“Similarly, while failure narrowly to tailor a subpoena
may be a ground for sanctions, the district court need not
impose sanctions every time it finds a subpoena overbroad;
such overbreadth may sometimes result from normal advocacy,
which we have said should not give rise to sanctions.”
Id. (citing Mount Hope Church, 705 F.3d at
426). Sanctions may be imposed, however “when a party
issues a subpoena in bad faith, for an improper purpose, or
in a manner inconsistent with existing law.”
Id. (citing Mount Hope Church, 705 F.3d at
425, 428; Mattel, Inc. v. Walking Mountain Prods.,
353 F.3d 792, 814 (9th Cir. 2003)).
26(g)(1)(B) “requires parties seeking discovery to act
(1) consistently with the rules of existing law or with good
reason to change the law; (2) without bad faith; and (3)
reasonably without imposing undue burden or expense
considering the needs of the case.” Mount Hope
Church, 705 F.3d at 425. A violation of any of these
duties without substantial justification mandates the
imposition of an appropriate sanction, such as reasonable
expenses, including attorneys' fees, caused by the
violation. Id.; Fed.R.Civ.P. 26(g)(3). “Because
Rule 45[(d)](1) gives ‘specific application' to
Rule 26(g), it follows that a violation of any one of the
Rule 26 duties will be relevant to assessing propriety of
sanctions under Rule 45[(d)](1)'s ‘undue
burden' language.” Mount Hope Church, 705
F.3d at 425.
an award of sanctions is appropriate because the subpoenas
imposed an undue burden on Defendant, they were inconsistent
with existing law, and they were for an improper purpose. As
already noted, Plaintiff failed to obtain the signature of
the Clerk of Court; she failed to personally serve the
subpoenas; and the subpoenas were unduly burdensome and
failed to allow reasonable time to comply. The failure to
obtain the Clerk of Court's signature and to effect
personal service is in contravention of FRCP 45's
requirements. Moreover, the four-day window to comply
imposed an undue burden and was inconsistent with existing
law. Finally, the overbreadth and irrelevance of the
subpoenas demonstrated that they were issued for an improper
purpose. As earlier noted, the subpoenas requested
“[a]ll school records (elementary to present), all
psychological evaluations, church records, military records,
a fifty year employment history list, and all safety training
classes attended. Bank records January 2014 to
present.” Doc. No. 91, Ex. A. The requests far exceeded
the bounds of normal advocacy. For these reasons, Defendant
is entitled to sanctions in the form of attorneys' fees.
Beaver Cty. Employees' Ret. Fund v. Tile Shop
Holdings, Inc., No. 16-MC-80076-JSC, 2016 WL 7212308, at
*4 (N.D. Cal. Dec. 13, 2016) (awarding sanctions pursuant to
FRCP 45(d)(1)); Sec. & Exch. Comm'n v.
Schooler, No. 316CV00517MMDWGC, 2016 WL 6821079, at *5
(D. Nev. Nov. 17, 2016) (awarding $10, 661.00 in sanctions
pursuant to FRCP 45(d)(1)).
courts calculate reasonable attorneys' fees based on a
method that is virtually identical to the traditional
“lodestar” calculation set forth in Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). See DFS
Group L.P. v. Paiea Props., 110 Hawai‘i 217, 222,
131 P.3d 500, 505 (2006). The court must determine a
reasonable fee by multiplying the ...