Usry v. Equityexperts.org, LLC

Filing 71

ORDER finding as moot 44 Motion to Compel; granting in part 53 Motion for Attorney Fees. Plaintiff is awarded the sum of $1,700.00 in reasonable attorney's fees. Defendant shall pay the award within 14 days of the date of this order. Signed by Magistrate Judge Brian K. Epps on 07/26/2017. (pts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
SARAH USRY and DANIEL DARNELL,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
EQUITYEXPERTS.ORG, LLC, d/b/a
Equity Experts,
Defendant.

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CV 116-010
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ORDER
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For the reasons set forth below, Plaintiffs’ motion to compel is MOOT, and the Court
GRANTS IN PART the motion for attorneys’ fees.
I.

Background
On April 12, 2017, Plaintiffs filed a motion to compel, and the Court held a

teleconference on April 21, 2017, during which the Court and parties resolved several of the
discovery disputes, and the parties agreed to continue working on resolution of the remaining
issues.

(See doc. nos. 44, 47.)

Notably, however, the Court described as unfounded

Defendant’s repeated objection to requests for production as failing to attach a transcript of a
deposition attended by defense counsel. See Court’s recording system, For the Record,
(hereinafter FTR), Apr. 21, 2017, 10:29.16-:31.30. The Court reserved ruling on the motion
to compel.

During a second teleconference on May 5, 2017, the parties memorialized for the
record their agreement to resolve all discovery issues raised by the motion to compel. May
5, 2017, FTR 11:02.08-:04.20; (see also doc. no. 62-5) (email memorializing agreement
between defense counsel and departing Plaintiffs’ counsel).

In the interim between

teleconferences, counsel who originally filed the motion to compel and worked out the
agreement to resolve the discovery disputes left the firm representing Plaintiffs. (See doc.
nos. 48, 49.) Lead counsel, David E. Hudson, appeared for the May 5th teleconference, and
when the Court inquired whether Plaintiffs intended to pursue fees for filing the motion to
compel, Mr. Hudson responded affirmatively, citing the issue of deposition transcripts
previously identified by the Court as a reason to pursue fees. May 5, 2017, FTR 11:11.55:12.30.
Plaintiffs then filed a motion seeking $3,200 in attorneys’ fees, and when the
incorrect billing records were attached to the original motion, sought permission to amend
the motion to attach the correct records, which the Court granted. (Doc. nos. 53, 63, 67.)
Defendant responded to the original and amended motions for fees. (Doc. nos. 62, 70.)
II.

Standard for Awarding Fees under Federal Rule of Civil Procedure 37
If a disclosure or discovery is provided after the filing of a motion to compel, 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.”
Fed. R. Civ. P. 37(a)(5)(A). Such an award of expenses is mandatory unless: “(i) the
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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.” Id.;
Slep-Tone Entm’t Corp. v. Johnson, 518 F. App’x 815, 821-22 (11th Cir. 2013).
The Court finds that an award of fees under Rule 37(a) is appropriate. Although the
parties reached a mutually agreeable resolution in which both sides made concessions by
modifying requests and/or updating responses as to most issues, Defendant only agreed to
alter its position after the motion to compel was filed. Moreover, as the Court explained
during the April 21st teleconference, the objections based on a failure to attach transcripts of
a deposition which defense counsel attended were particularly not well founded.
Nevertheless, the record is clear the resolution of the motion to compel without a point by
point ruling by the Court was the result of the spirit of cooperation between Plaintiffs’ prior
counsel and defense counsel. Thus, the Court turns to the reasonableness of Plaintiffs’ fee
request.
III.

Calculating a Reasonable Award Under the Lodestar Method
“The starting point for determining the amount of a reasonable fee is the number of

hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Bivins
v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (citation omitted). “In determining
what is a reasonable hourly rate and what number of compensable hours is reasonable, the
court is to consider the twelve factors enumerated in Johnson v. Georgia Highway Express,

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Inc., 488 F.2d 714 (5th Cir.1974).” 1 Id. (internal quotations omitted). The product of these
two figures is the lodestar. Id. After calculating the lodestar, the Court may then consider
whether it should be adjusted upwards or downwards. Norman v. Housing Auth., 836 F.2d
1292, 1302 (11th Cir. 1988); Lambert v. Fulton Cty., 151 F. Supp.2d 1364, 1369 (N.D. Ga.
2000). “The fee applicant bears the burden of establishing entitlement and documenting the
appropriate hours and hourly rates.” Norman, 836 F.2d at 1303.
A.

Reasonable Hourly Rate

“A reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills, experience, and
reputation.” Id. at 1299. Defendant does not contest the hourly rate. However, Plaintiffs
have listed, without explanation, differing hourly rates for the same attorneys. For example,
Mr. Hudson has variously billed at $260 per hour and $300 per hour. (Doc. no. 63-1, p. 1.)
Former counsel Mr. Robertson has billing rates variously listed as $138, $172, and $200 per
hour. (Id.) In the absence of any explanation for the discrepancy, and upon consideration of
the relevant legal market, the underlying discovery disputes, and counsel’s experience and
expertise, the Court sets the hourly billing rate as $260 for Mr. Hudson, $200 for Ms.

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The twelve factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the
skill requisite to perform the legal service properly; (4) the preclusion of 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.
Bivins, 548 F.3d at 1350 n.2.
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Sanders, and $200 for Mr. Robertson. This Court has previously approved rates well within
these ranges as reasonable in Augusta and comparable legal markets. See, e.g., M.I.T., Inc.
v. Medcare Express, N. Charleston, LLC, No. 1:14-cv-081, 2014 WL 5149150, at *4 (S.D.
Ga. Oct. 14, 2014); Ojeda–Sanchez v. Bland Farms, No. 6:08-cv-96, 2013 WL 5652032, at
*2 (S.D. Ga. Oct. 16, 2013).
B.

Hours Reasonably Expended

When exercising proper “billing judgment,” attorneys must exclude excessive,
redundant, or otherwise unnecessary hours from fee applications. ACLU of Ga. v. Barnes,
168 F.3d 423, 428 (11th Cir. 1999). “[H]ours excluded are those that would be unreasonable
to bill a client” without reference to the skill, reputation, or experience of counsel. Norman,
836 F.2d at 1301. “[A] lawyer may not be compensated for hours spent on activities for
which he would not bill a client of means who was seriously intent on vindicating similar
rights, recognizing that in the private sector the economically rational person engages in
some cost benefit analysis.” Id.
After reviewing the billing records submitted by Plaintiffs, the Court finds adjustment
of the total hours billed to be necessary. For the reasons stated in Defendant’s opposition
briefing, (doc. no. 70), including entries that appear to be duplicative or otherwise excessive,
the Court finds that the billable hours must be reduced. Accordingly, the Court finds the
lodestar to be $1,700, consisting of 3.5 hours at $260 per hour for Mr. Hudson; 3.6 hours at
$200 per hour for Mr. Robertson, and 1.0 hour at $200 for Ms. Pickett. The lodestar need
not be further adjusted.
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IV.

Conclusion
The motion to compel is MOOT. (Doc. no. 44.) The Court GRANTS IN PART the

motion for attorneys’ fees, (doc. no. 53), and awards Plaintiffs the sum of $1,700 in
reasonable attorneys’ fees. Defendant shall pay the award within fourteen days of the date
of this Order.
SO ORDERED this 26th day of July, 2017, at Augusta, Georgia.

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