Decorative Components Incorporated, Inc. v. Icon Computing Solutions, Inc.

Filing 24

ORDER granting in part 22 Motion for Attorney Fees. Mr. Massey shall pay the plaintiffs $847.75 in reasonable expenses incurred in making their motion to compel, including attorney's fees. The ruling on Mr. Massey's motion to withdraw as counsel is held in abeyance until the Court has been informed that the attorney's fee issue has been resolved. Signed by Judge Kristi K. DuBose on 11/2/2012. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DECORATIVE COMPONENTS
INCORPORATED, INC., et al.,

:

Plaintiffs,

:

v.

:

ICON COMPUTING SOLUTIONS, INC.
d/b/a ICON PARETO,

:

Defendant.

MC 1:12-00007-KD-C

:
ORDER

Pending before the undersigned for consideration are the plaintiffs’ petition for
fees and expenses associated with compelling the defendant’s cooperation with postjudgment discovery (Doc. 22), brought against the defendant’s counsel, R. Edward
Massey, Jr., Esq., individually, and filed October 2, 2012 pursuant to the Court’s
September 18, 2012 Order (Doc. 21), and Mr. Massey’s response (Doc. 23), filed October
9, 2012.1 For the reasons set forth herein, pursuant to Rule 37(a)(5)(A), it is ORDERED
that Mr. Massey shall pay the plaintiffs $847.75 in “reasonable expenses incurred in
making [their August 3, 2012 Motion to Compel (Doc. 4)], including attorney’s fees.”
FED. R. CIV. P. 37(a)(5)(A).
Background and Underlying Action
The defendant’s response briefly summarizes the events that led to the
enforcement action being filed in this Court (see Doc. 23 at 2): Georg Bangs lead a
“growing and prospering business[,]” ICON, which continued to grow
until 2009[,] when Mr. Bangs[, ICON’s CEO,] made a decision to purchase
Infologix, a NASDAQ company that produced medical carts. One of
ICON’s major suppliers in connection with the Infologix transaction was
1

This post-judgment enforcement action against the defendant is currently stayed
pursuant to 11 U.S.C. § 362(a)(1). (See Doc. 21.)

DCI/Brillcast[—the plaintiffs/judgment debtors].
To say that this
decision was a disaster would be an understatement. The company,
according to Mr. Bangs, spent a large sum of money trying to extricate
itself from this endeavor[,] which included getting sued by certain
contract manufacturers, of which DCI/Brillcast was the largest.
The company simply ran out of resources and consented to Default
Judgments in most of these cases.
(Id.)
DCI and Brillcast filed their suit against ICON in the United States District Court
for the Western District of Michigan on December 9, 2010 (see Doc. 1-1, compl.), and a
judgment by default was entered against ICON, in the amount of $3,449,132.21,
exclusive of any post-judgment interest or future costs, on January 26, 2012 (see Doc. 1).
Mr. Massey did not appear as counsel for ICON in the Western District of Michigan
Lawsuit.
Enforcement Procedure in this Court
The Western District of Michigan Judgment was registered in this Court on April
9, 2012 (see Doc. 1), and a notice that DCI and Brillcast had served ICON with their first
post-judgment interrogatories and requests for production of documents was filed on
May 21, 2012 (see Doc. 3).
[A] party who possesses a prior judgment obtained in a federal district
court may attempt to enforce that judgment in another federal district
court by registering the judgment with that court [pursuant to 28 U.S.C. §
1963, which, in relevant part, provides that “[a] judgment in an action for
the recovery of money or property entered in any . . . district court . . . may
be registered by filing a certified copy of the judgment in any other district
. . . when the judgment has become final by appeal or expiration of the
time for appeal or when ordered by the court that entered the judgment
for good cause shown.”]
.

.

.

28 U.S.C. § 1963 [further] provides that the “judgment so registered shall
have the same effect as a judgment of the district court of the district
where registered and may be enforced in like manner.” This means that
an out-of-district, registered judgment “ha[s] the same effect, and [is]

2

entitled to the same protection, as if it had been entered in [the registered
district] in the first instance.”
CSX Transp., Inc. v. Filco Carting Corp., No. 10–CV–1055 (NGG)(JMA), 2011 WL 2713487,
at *1 & *2 (E.D.N.Y. July 11, 2011) (quoting Karaha Bodas Co. v. Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara, 500 F.3d 111, 121 (2d Cir. 2007)).
And Rule 69(a)(2) provides that, “[i]n aid of the judgment or execution, the
judgment creditor . . . may obtain discovery from any person—including the judgment
debtor—as provided in [the Federal Rules] or by the procedure of the state where the
court is located.” Id.
On August 3, 2012—more than two months after service of the discovery
requests—the plaintiffs, pursuant to Rule 37(a)(3)(B), filed a motion to compel
responses from ICON (Doc. 4); the motion also details their efforts to obtain responses
from ICON without Court intervention. The undersigned granted the motion via an
endorsed order entered on August 5, 2012 (Doc. 5), which explained,
It is clear from the motion and the court record that the discovery
responses at issue have not been served and are extremely late. Therefore,
Icon Computing Solutions, Inc. shall respond to outstanding discovery no
later than August 13, 2012 or suffer the appropriate sanction. Should the
defendant seek a hearing on this motion, it should immediately contact
the Chambers of the undersigned so that a telephone conference may be
scheduled. The moving party shall ensure that the defendant and its
attorney are served with a copy of this Order.
(Id.; see also Doc. 6, the plaintiffs’ notice of service.)
On August 10, 2012, at the request of Mr. Massey, the undersigned conducted a
telephone conference with the parties. After conferring with counsel on the record, the
Court modified the August 6, 2012 Order to extend the time for ICON to respond to
August 20, 2012. (Doc. 7.) That order further provided that (1) the responses were to be
served without objection since all objections have been waived; (2) if ICON should fail
to serve responses as ordered, it shall be subject to appropriate sanctions; and (3) the
3

plaintiffs’ request for costs and fees would be heard once a formal accounting was
submitted. (See id.)
On August 21, 2012, the plaintiffs filed a motion for civil contempt and sanctions
(Doc. 8), which informed the Court that ICON had failed to comply with the Court’s
August 10, 2012 Order, and, because of this noncompliance, the undersigned ordered
ICON to respond and set a hearing for September 5, 2012 to allow ICON and its counsel
an opportunity to “fully explain why they did not comply with the Court’s August 10,
2012 Order and why they should not be held in contempt and/or sanctioned for their
failure to comply with an order of the Court” (Doc. 9).2
As a result of the September 5, 2012 Hearing, which Messrs. Bangs and Massey
attended in person and in which counsel for the plaintiffs participated telephonically,
the undersigned set forth specific deadlines to facilitate the completion of the postjudgment discovery (see Doc. 15 at 2-3); the first deadline, requiring the submission of
sworn responses to the pending interrogatories, was September 12, 2012 (see id. at 2).
2

Prior to the hearing, Mr. Massey filed, on August 24, 2012, a motion “for a
clarification of his role as it related to [the defendant]” (Doc. 10). In the September 7, 2012 Order
(Doc. 15), entered after the hearing, the undersigned granted Mr. Massey’s motion and held,
Mr. Massey is, until such time that he moves to withdraw, and the Court grants
that request, see generally S.D. ALA. L.R. 83.5, counsel of record for the defendant,
Icon Computing Solutions, Inc. d/b/a Icon Pareto, and Mr. Bangs, in his capacity
as chief executive officer of Icon.
It is evident, based on the record in this case, including the testimony given at the
September 5, 2012 Hearing, that Mr. Massey has acted as counsel for the
defendant and its CEO. He assisted the defendant upon its receipt of the postjudgment discovery requests, communicated with the plaintiffs’ counsel on
behalf of the defendant with regard to those requests, initiated the conference
with the Court and the parties on August 10, 2012 (see Doc. 7), and
communicated with the Court on behalf of the defendant with regard to the
defendant’s August 30, 2012 attempt to answer the pending post-judgment
interrogatories (see Doc. 12).
(Id. at 3-4.) Mr. Massey filed a withdrawal motion (Doc. 18) on September 12, 2012, citing the
filing of the bankruptcy petition as grounds, but that motion remains undecided pending a
ruling on the petition for expenses and attorneys’ fees (see Doc. 21 at 2).

4

But on that date, the Court was informed, instead, that the defendant filed a petition for
relief under Chapter 7 of the Bankruptcy Code (Case Number 12-03148, pending in the
United States Bankruptcy Court for this District) (see Doc. 17) and, as such, the
enforcement proceedings should be stayed pursuant to 11 U.S.C. § 362(a)(1).
On September 17, 2012, pursuant to the Court’s September 14, 2012 Order (Doc.
19), the plaintiffs informed the Court “that they will pursue their remedies against [the
defendant,] Icon[,] in the United States Bankruptcy Court for the Southern District of
Alabama” (Doc. 20), but also asserted
that [they] should be entitled to recover their reasonable expenses,
including attorneys’ fees, incurred in obtaining the order to compel and
the order for sanctions from Icon’s attorney of record, [Mr. Massey, and]
request[ed] that the Court permit [them] to submit a fee petition for fees
incurred as a result of Mr. Massey’s failure to comply with the Court’s
orders.
(Id.)

The undersigned agreed to allow the plaintiffs to “pursue Mr. Massey

individually” (Doc. 21 at 1 (citing FED. R. CIV. P. 37(b)(2)(C)3), which lead to the filing of
the plaintiffs’ petition (Doc. 22) and Mr. Massey’s response (Doc. 23).
Attorneys’ Fees Analysis
Pursuant to Rule 37, if a motion to compel—such as the plaintiffs’ August 3, 2012
Motion (Doc. 4), made pursuant to Rule 37(a)(3)(B)—is granted,
the court must, after giving an opportunity to be heard, require the party
or deponent whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees. But the court
must not order this payment if:

3

That provision provides that, “[i]nstead of or in addition to the orders above, the
court must order the disobedient party, the attorney advising that party, or both to pay the
reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust.” Id. (emphasis
added).

5

(i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A) (emphasis added); see also Harvey v. West Acquisitions & Inv.
Group, Inc., No. 07-61265-CIV, 2008 WL 268602, at *3 (S.D. Fla. Jan. 29, 2008) (“In
discussing the intent of [the rule], the Advisory Committee Notes to the 1970
amendments to Rule 37 stated, ‘The change requires that expenses be awarded unless
the conduct of the losing party or person is found to have been substantially justified.’”)
(citations omitted).
The plaintiffs seek “fees and expenses in the amount of $3,595.00[,]” an amount
they contend “does not reflect the full amount of the fees and expenses incurred in
association with Plaintiffs’ necessary and reasonable efforts to compel Icon’s
cooperation with post-judgment discovery,” but nevertheless “represents a fair and
reasonable sanction” against Mr. Massey.

(Doc. 22 at 2-3; see also Doc. 22, Ex. A,

Hammond Decl. (attesting to reasonableness and necessity of the time expended); Ex. 1
to Hammond Decl. (pertinent time entries for Attorneys Daniel J. Martin and Natalie A.
Cox).)
In his response to the petition (Doc. 23), Mr. Massey does not take issue with the
reasonableness of the plaintiffs’ attorneys’ fees, but, instead, sets forth details regarding
his relationship with Mr. Bangs, whom he met through members of his church. After
meeting Mr. Bangs, Mr. Massey became an investor in the business that later became
ICON, and Mr. Massey further explains,
From the beginning of ICON . . . , a small group of investors initially
helped Mr. Bangs get started. As the only attorney in the group, Mr.
Bangs looked to me to review contracts and negotiate disputes. I was

6

never paid for my services, but I did the work to help the company
toward what I though would result in a successful business. I invested
my own time and money to try to keep the company going and protect
myself and my friends from what has eventually happened.
(Id. at 3.) In requesting that the fee petition be denied, Mr. Massey goes on to assert that
he never “engage[d] in any action to improperly frustrate the actions of the Plaintiff in
seeking discovery”; worked with the plaintiffs’ counsel, Mr. Martin, to resolve this
matter based on “information Mr. Bangs gave me concerning potential investors”;
“advised Mr. Bangs of the seriousness of the discovery process and noted that his
answers had to complete and accurate”; and “had nothing to do with Mr. Bangs’
decision to file for Chapter 7 bankruptcy,” asserting that “[i]t would have been
completely against [his] interests as a creditor to have advised him to file bankruptcy.”
(Id.)
Because Mr. Massey does not—and cannot—claim that ICON’s failure to
respond to the discovery was “substantially justified,” the undersigned interprets his
response as asserting that the “circumstances [here] make an award of expenses
unjust.” FED. R. CIV. P. 37(a)(5)(A)(iii).4 The circumstances here, however, do not make
an award of expenses unjust. As stated above, see supra footnote 2, and in a previous
order (Doc. 15), it is evident to the undersigned that Mr. Massey has acted as counsel for
ICON and Mr. Bangs, as ICON’s CEO, in proceedings before this Court. And because
Mr. Massey, as an investor with Mr. Bangs and, according to Mr. Bangs, “a shareholder
and large creditor of [ICON]” (Doc. 23-1), has a pecuniary interest in this litigation, it
4

As this Court has explained, “[d]etermining whether the respondent’s defense is
‘substantially justified’ requires that the court’s focus ‘. . . must be on the quality of the
justification and the genuineness of the dispute; where an impartial observer would agree that a
party had good reason to withhold discovery then such a justification is “substantial.”’” Cal
Dive Int’l, Inc. v. M/V Tzimin (ex Stena Seahorse), 127 F.R.D. 213, 217 (S.D. Ala. 1989) (Brown, C.J.,
sitting by designation, affirming the undersigned’s award of attorneys’ fees) (quoting Alvarez v.
Wallace, 107 F.R.D. 658, 662 (W.D. Tex. 1985)).

7

cannot properly be said that Mr. Massey has undertaken this representation pro bono.
But, even if that was the case, such a representation does not absolve an attorney from
being held accountable under the Federal Rules of Civil Procedure and orders issued by
this Court. See, e.g., Xu Yong Lu v. Ashcroft, 259 F.3d 127, 135 (3rd Cir. 2001) (“An
attorney’s obligation to his client is not diminished by the pro bono nature of his
representation.”); Goldstein v. Costco Wholesale Corp., 337 F. Supp. 2d 771, 778-79 (E.D.
Va. 2004) (contemplating the extreme step of sanctioning pro bono counsel the court
characterized as “determined to cause delay and try [its] patience[,]” noting that “[p]ro
bono attorneys are not above being sanctioned”) (citing Xu Yong Lu).
As such, because Mr. Massey has been given “an opportunity to be heard,” the
undersigned must follow the dictate of Rule 37(a)(5)(A) and require ICON/Mr. Bangs,
Mr. Massey, or both “pay [the plaintiffs’] reasonable expenses incurred in making the
[August 3, 2012 Motion (Doc. 4)], including attorney’s fees.” Id.5
A.

Lodestar

“Courts typically use the lodestar method to calculate an award of expenses and
attorney’s fees as a sanction under Rule 37 against a party failing to comply with a
discovery order.” Shulman v. Chromatex, Inc., Civil Action No. 3:CV–08–0229, 2012 WL
4793763, at *3 (M.D. Pa. Oct. 9, 2012) (citations omitted); see also Edelen v. Campbell Soup
Co., 265 F.R.D. 676, 693 (N.D. Ga. 2010) (citing Smith v. Atlanta Postal Credit Union, 350

5

Even though Mr. Massey was on notice, through the Court’s September 18, 2012
Order (Doc. 21), that the plaintiffs were pursuing him individually and that order explicitly
requested Mr. Massey’s response (see id. at 2), a motion brought pursuant to Rule 37, like the
motion to compel filed by DCI/Brillcast, automatically places an attorney on notice that the
Court could impose “sanctions against the individual attorney . . . or counsel in general.”
Triple-I Corp. v. Hudson Assocs. Consulting, Inc., No. 06–2195–EFM, 2009 WL 2162204, at *1 (D.
Kan. July 17, 2009) (motion brought pursuant to Rule 37(b)(2)(C), which like Rule 37(a)(5)(A),
requires the court to order either a party, its attorney, or both to pay reasonable expenses,
including attorney’s fees).

8

Fed. App’x 347 (11th Cir. Sept. 28, 2009) (per curiam) for the proposition that a district
court calculates reasonable attorneys’ fees as a sanction under Rule 37 pursuant to the
lodestar method).
The lodestar figure is simply “the product of the number of hours reasonably
expended to prosecute the lawsuit multiplied by a reasonable hourly rate for work
performed by similarly-situated attorneys in the community.” Young v. International
Paper Co., Civil Action No. 10–179–CG–M, 2012 WL 37647, at *4 (S.D. Ala. Jan. 6, 2012)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Norman v. Housing Auth. of the City of
Montgomery, 836 F. 2d 1292, 1299 (11th Cir. 1988)).
1.

Requested Attorneys’ Fees
Requested hours

Requested hourly rate

Requested total

Martin

4.1

$230.00

$943.00

Cox

13.6

$195.00

$2,652.00

TOTAL

$3,595.00
2.

Hours

While Mr. Massey does not explicitly contest the hours requested, the
undersigned finds some of those hours to be excessive given the relatively noncomplex
nature of these proceedings.

Accordingly, the hours Attorneys Martin and Cox

expended in preparing motions, responses, and replies related to the motion to compel
should be reduced by fifty percent. The time entries related to Court conferences and
conferring with opposing counsel shall not be reduced.6 See Young, 2012 WL 37647, at

6

Specifically, 5.90 hours billed on August 3 by Attorney Cox is reduced to 2.95
hours; 0.30 hours billed by Attorney Martin on August 20 is reduced to 0.15 hours; 2.80 hours
billed by Attorney Cox on August 21 is reduced to 1.40 hours; 1.90 hours billed by Attorney Cox
on August 28 is reduced to .95 hours; 0.40 hours billed by Attorney Martin on August 29 is
reduced to 0.20 hours; 2.50 hours billed by Attorney Cox on August 29 is reduced to 1.25 hours;

9

*4 (“Where the rates or hours claimed seem excessive or lack the appropriate
documentation, a court may calculate the award based on its own experience,
knowledge, and observations.”) (citations and internal quotation marks omitted).
3.

Hourly Rate

“Although the attorney’s usual billing rate provides a starting point, this is not
dispositive of whether the requested rate is reasonable.” Shulman, 2012 WL 4793763, at
*3. Judge Granade, in Young, recently recounted reasonable hourly rates charged by
Mobile attorneys, as found by this Court in 2010 and 2011—$250 to $350 per hour for
“top Mobile lawyers in complex cases”; $250 per hour “for an attorney with 15 years
experience as a law firm partner”; $200 per hour “for an attorney with seven years
experience as a law firm associate”; and $150 per hour “for an attorney with three years
experience as a law firm associate[.]” 2012 WL 37647, at *5 (finding that the prevailing
defendant’s counsel’s “proposed” rates—$220 per hour for a partner with 27-years
experience; $190 per hour for partners with 15-years experience; and $150 per hour for
an associate with three years experience—to be reasonable) (citations omitted).
The undersigned takes judicial notice that Attorney Martin is an associate with
approximately eight years experience (he was admitted to the Michigan Bar in 2004 and
the Alabama Bar in 2011) and Attorney Cox is an associate with approximately four
years experience (she was admitted to the Alabama Bar in 2008).7 Accordingly, the

and 1.30 hours billed by Attorney Martin on August 31 is reduced to 0.65 hours. Further, the
undersigned finds that the plaintiffs are not entitled to recoup the 0.50 hours Attorney Cox
billed, drafting correspondence to opposing counsel regarding overdue discovery responses, on
July 18, 2012, prior to the filing of the motion to compel on August 3, 2012. (See Doc. 22 at 10.)
7

This information was obtained from a review of their law firm’s website and
websites for the Alabama and Michigan state bar associations.

10

undersigned determines that the requested $230 is an appropriate hourly rate for
Attorney Martin, but finds that Attorney Cox’s hourly rate should be reduced to $150.
4.

Adjusted Lodestar
Adjusted hours

Adjusted hourly rate

Adjusted lodestar

Martin

3.1

$230.00

$713.00

Cox

6.55

$150.00

$945.00

TOTAL
B.

$1,695.50
Responsible Party

One issue remains. While there is no excuse for leaving it to a layperson like Mr.
Bangs to respond to requests for discovery in a lawsuit, see, e.g., Cal Dive Int’l, Inc. v.
M/V Tzimin (ex Stena Seahorse), 127 F.R.D. 213, 216 (S.D. Ala. 1989),8 which—based on
testimony at the September 5, 2012 Hearing and on Mr. Massey’s response (see Doc. 23
at 39)—appears to possibly have been the case here, it is not completely clear that the
failure to respond to the propounded discovery is entirely Mr. Massey’s fault.
“It is well settled that, to the extent possible, attorney fee awards under Rule
37(a) should be imposed only upon the person or entity responsible for the conduct
8

There, the Court noted a “most spectacular incident” of leaving to a layperson,
unsupervised, the task of responding to requests for production of documents:
The duty of production fell to Captain Goran Hansson whose testimony at the
sanction hearing was a revelation of how the production of documents
proceeded. He was simply given a list of Cal Dive’s requests and set about to
copy and produce those documents he deemed responsive to the requests. It was
a “learning experience ” for him and each time the Court would order more
documents produced, his job became a little clearer. He gave no indication that
he was aided in his task by any of the lawyers working for Stena/Concordia.
Id. (emphasis in original).
9

The response, in part, provides, “I advised Mr. Bangs of the seriousness of the
discovery process and noted that his answers had to complete and accurate. As Mr. Bangs
pointed out in a letter supporting this response, he felt the task exceeded his ability to
perform.” (Id. (emphasis added).)

11

giving rise to the fee award.” Meridith v. Great Wolf Lodge of Kansas City, LLC, Civil
Action No. 07-2529-DJW, 2008 WL 5109764, at *1 (D. Kan. Dec. 2, 2008) (footnote and
citations omitted) (holding that because “[t]he sanctioning of a party, as opposed to the
party’s counsel, requires specific findings that the party was aware of, and/or
responsible for, the wrongdoing[,]” where “nothing in the record indicat[ed] that
Plaintiffs were aware they owed Defendant discovery responses or that they were
responsible for making the decision to not answer the discovery requests at issue in the
Defendant's Motion to Compel[,] . . . the fee award should be imposed against Plaintiffs’
counsel rather than Plaintiffs themselves”); see also Worldcom Network Servs., Inc. v. Metro
Access, Inc., 205 F.R.D. 136, 144 (S.D.N.Y. 2002) (“The reason the sanction is imposed on
counsel rather than the party is because the failures here are attributable solely to
counsel and not to any noncompliance by Metro itself.”) (citations omitted); McCoo v.
Denny’s Inc., 192 F.R.D. 675, 697 (D. Kan. 2000) (“To the extent possible, sanctions
should be imposed only upon the person or entity responsible for the sanctionable
conduct. . . . In the absence of any evidence that Denny’s was responsible for the
unsupported objections made here, the Court finds it appropriate to hold Denny’s
counsel solely responsible for paying the monetary sanctions.”) (citations omitted);
accord Starlight Int’l, Inc. v. Herlihy, 190 F.R.D. 587, 593-94 (D. Kan. 1999); cf. Shipes v.
Trinity Indus., 987 F.2d 311, 323 (5th Cir. 1993) (“Under Rule 37(b), [the attorney] may be
personally liable for reasonable expenses, including attorneys’ fees, caused by his
failure to comply with a discovery order.”) (citing Batson v. Neal Spelce Assoc., Inc., 765
F.2d 511, 516 (5th Cir. 1985)) (emphasis added).
Mr. Massey did not appear as counsel for the defendant in the Western District
of Michigan Lawsuit that resulted in the entry of a default judgment. Further, the
record before this Court makes it clear that, although he may have received assistance
12

from his investors, such as Mr. Massey, Mr. Bangs played an active role with regard to
dealing with post-judgment discovery requests. Mr. Massey played a part too, but it is
clear that the defendant’s “failures [with regard to compliance with post-judgment
discovery] are [not] attributable solely to counsel[.]”

Worldcom Network Servs., 205

F.R.D. at 144. Therefore, the Court will apportion responsibility for payment of the
attorneys’ fees awarded to the plaintiffs pursuant to Rule 37(a)(5)(A) fifty percent to the
defendant and fifty percent to Mr. Massey individually.10
Conclusion
It is therefore ORDERED that Mr. Massey shall pay the plaintiffs $847.75 in
“reasonable expenses incurred in making [their August 3, 2012 Motion to Compel (Doc.
4)], including attorney’s fees.” FED. R. CIV. P. 37(a)(5)(A).
It is FURTHER ORDERED that a ruling on Mr. Massey’s motion to withdraw as
counsel for ICON (Doc. 18) is HELD IN ABEYANCE until the Court has been informed
through a filed notice that the attorneys’ fee issue that is the subject of this order has
been resolved.
DONE and ORDERED this the 2nd day of November, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

10

Any award against the defendant, protected by the automatic stay entered
pursuant to 11 U.S.C. § 362(a)(1), is, however, purely academic. “[T]he filing of a bankruptcy
petition automatically ‘stays the continuation of any judicial proceeding against the debtor that
was commenced prior to the filing of a case under Title 11[,]’” Esso Exploration & Prod. Chad, Inc.
v. Taylors Int’l Servs. Ltd., No. 06 Civ. 4401(RMB)(MHD), 2008 WL 4185748, at *1 (S.D.N.Y. Sept.
3, 2008) (quoting In re Braught, 307 B.R. 399, 403 (Bankr. S.D.N.Y. 2004)) (emphasis added), and
applies “to discovery requests as well as merits adjudications, including post-judgment requests
that are aimed to enforce a ‘money judgment [which] would give [one creditor] preferential
treatment to the detriment of all other creditors[,]’” id. (quoting Brock v. Morvsville Body Works,
Inc., 829 F.2d 383, 389 (3d Cir. 1987)).

13