Davis v. White Mountain Communities Hospital Incorporated et al
ORDER granting Plaintiff's 64 Second Motion for Attorney Fees. Plaintiff is awarded fees in the amount of $2,266.00 (10.3 x 220). (See document for further details). Signed by Judge H Russel Holland on 4/19/16. (LAD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
WHITE MOUNTAIN COMMUNITIES
HOSPITAL, INC., d/b/a WHITE MOUNTAIN )
REGIONAL MEDICAL CENTER, et. al,
Plaintiff’s Second Motion for Attorney’s Fees
On February 12, 2016, plaintiff moved1 to compel more complete answers to her
second set of interrogatories. In her second set of interrogatories, plaintiff sought the
identities, dates of employment, employment status, and wage/salary information for all
employees who were terminated during a December 2103 reduction in force. She also
sought the names, start dates, and wage/salary information for all of the nursing house
supervisors who were employed on December 1, 2013. Defendant provided the names of
the individuals but claimed the other requested information was confidential and/or not
Docket No. 49.
relevant. The court disagreed and granted plaintiff’s motion to compel and ordered
defendant to fully answer the second set of interrogatories.2
Pursuant to Rule 37(a)(5)(A), Federal Rules of Civil Procedure, plaintiff now moves3
for an award of attorney’s fees incurred in bringing the motion to compel. This motion is
opposed.4 Oral argument was not requested and is not deemed necessary.
Rule 37(a)(5)(A) provides that if a motion to compel 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.”
There are, however, three exceptions to this rule. The court should not order the payment
of reasonable expenses if 1) “the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action;” 2) “the opposing party’s
nondisclosure, response, or objection was substantially justified;” or 3) “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).
Defendant argues that an award of attorney’s fees would not be appropriate here
because its position was substantially justified. A party’s position is “‘substantially
Order re Second Motion to Compel at 2, Docket No. 60.
Docket No. 64.
Docket No. 67.
justified’ under Rule 37 if reasonable people could differ on the matter in dispute.” U.S.
E.E.O.C. v. Caesars Entertainment, Inc., 237 F.R.D. 428, 435 (D. Nev. 2006). Defendant
argues that its position was substantially justified because defendant has an ongoing
concern about plaintiff’s ability to maintain confidentiality5 and because some of the
information that plaintiff was requesting was not relevant to her claims.
Defendant’s position was not substantially justified. Any alleged concerns about
plaintiff’s ability to maintain confidentiality were not raised in defendant’s response to the
second set of interrogatories nor was this concern raised during the parties’ efforts to
resolve the discovery dispute. Defendant’s failure to fully respond to plaintiff’s second set
of interrogatories was not justified because of defendant’s recently developed concern
about plaintiff’s ability to maintain confidentiality. As for defendant’s position that the
information that plaintiff sought was confidential and/or not relevant, as the court stated
in its order on the motion to compel, “the resolution provided here was strongly indicated
by the court’s ruling on an earlier motion to compel interrogatories.”6 In other words,
based on the court’s ruling on plaintiff’ first motion to compel, defendant should have
known that its objections to plaintiff’s second set of interrogatories were not well taken.
This alleged concern is the subject of defendant’s pending motion for leave to
amend its answer to add a counterclaim.
Order re Second Motion to Compel at 1, Docket No. 60.
Because none of the three exceptions apply here, plaintiff is entitled to an award of
her reasonable attorney’s fees incurred in connection with her second motion to compel.
“In the Ninth Circuit, the proper method for determining reasonable attorneys’ fees is to
use the ‘lodestar method.’ First, the trial court calculates attorneys’ fees by multiplying the
number of hours reasonably spent by counsel by a reasonable hourly rate.” Cotton v. City
of Eureka, Cal., 889 F. Supp. 2d 1154, 1165 (N.D. Cal. 2012) (internal citations omitted).
In setting the rate, the district court also should consider the
factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d
67, 69–70 (9th Cir. 1975). The Kerr factors are: (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.
Plaintiff’s attorney’s hourly rate is $220.00.7 This is a reasonable rate given that
plaintiff’s attorney is a sole practitioner with over ten years of experience and given the
nature of this employment discrimination case.
Declaration in Support of the Second Motion for Attorney’s Fees at 2, ¶ 4, Exhibit
A, Plaintiff’s Second Motion for Attorney’s Fees, Docket No. 64.
“After deciding the appropriate hourly rate, the district court then examines the fee
applicant’s contemporaneously recorded billing records and exclude[s] from the lodestar
amount hours that are excessive, redundant, or otherwise unnecessary.” Id. (citation
omitted). “Then, in appropriate cases, the district court may adjust the lodestar figure
based upon the Kerr factors that were not subsumed into the initial lodestar calculation.”
Plaintiff’s attorney avers that he expended 10.3 hours in connection with the motion
to compel and the instant motion for fees.8 The court finds that this was a reasonable
amount of time to spend in connection with the second motion to compel. Although the
4.3 hours spent on drafting a reply to defendant’s opposition to the motion to compel may
seem excessive,9 it was not in this instance given the issues raised by defendant in its
Plaintiff’s second motion for an award of attorney’s fees10 is granted. Plaintiff is
awarded fees in the amount of $2,266.00 (10.3 x 220).
DATED at Anchorage, Alaska, this 19th day of April, 2016.
/s/ H. Russel Holland
United States District Judge
Id. at ¶ 6.
Exhibit B, Plaintiff’s Second Motion for Attorney’s Fees, Docket No. 64.
Docket No. 64.
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