Starin Marketing, Inc. v. Swift Distribution, Inc.

Filing 160

OPINION AND ORDER: The Court GRANTS in part the Motion of Plaintiff/Counterdefendant Starin Marketing, Inc. to Assess Attorney's Fees DE 149 and ORDERS Defendant/Counter Claimant Ultimate Support Systems to reimburse Starin in the sum of $4,785.00 within a reasonable time. Signed by Magistrate Judge John E Martin on 8/7/19. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
STARIN MARKETING, INC.,
Plaintiff,

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)
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v.
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SWIFT DISTRIBUTION, INC., d/b/a
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ULTIMATE SUPPORT SYSTEMS,
)
Defendant,
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___________________________________ )
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SWIFT DISTRIBUTION, INC., d/b/a
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ULTIMATE SUPPORT SYSTEMS,
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Counter Claimant,
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v.
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STARIN MARKETING, INC.,
)
Counter Defendant.
)

CAUSE NO. 2:16-CV-67-TLS-JEM

OPINION AND ORDER
This matter is before the Court on a Motion of Plaintiff/Counterdefendant, Starin Marketing,
Inc., to Assess Attorney’s Fees Pursuant to Fed. R. Civ. P. 37(A)(5) [DE 149], filed June 5, 2019.
On May 22, 2019, the Court granted the Motion of Plaintiff/Counterdefendant, Starin Marketing,
Inc., to Compel Discovery, and set a briefing schedule for the attorney’s fees incurred in filing the
motion. On June 5, 2019, Starin filed the instant petition requesting $5,610.00 in attorney’s fees.
Defendant/Counter Claimant Swift Distribution, Inc., d/b/a Ultimate Support Systems filed a
response on June 11, 2019, acknowledging that fees are appropriate but objecting to the amount of
fees. On June 27, 2019, Starin filed a reply, requesting an additional $550.00.
Rule 37 provides that, if a motion to compel is granted, the Court “must, after giving the
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” unless “the movant filed the motion before
attempting in good faith to obtain” the requested discovery, “the opposing party’s nondisclosure .
. . was substantially justified; or . . . other circumstances make an award of expenses unjust.” Fed.
R. Civ. P. 37(a)(5)(A). District courts possess wide latitude in evaluating the reasonableness of
requested attorney fees and costs. Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir. 1999).
Starin’s motion to compel was granted, so it is up to Ultimate to demonstrate that its
nondisclosure was substantially justified or other circumstances make an award of attorneys’ fees
unjust. As the Supreme Court has explained,“the most useful starting point for court determination
of the amount of a reasonable fee payable by the loser is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate,” known as the “lodestar.” Gisbrecht v.
Barnhart, 535 U.S. 789, 801-02 (2002) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983))
(quotation and other marks omitted). Starin requests attorney fees in the amount of $5,610.00,
representing 20.4 attorney hours at the rate of $275 per hour on the initial motion to compel and
brief in support of fees, plus an additional 2 hours, or $550.00, for drafting the reply brief. Ultimate
acknowledges Starin’s entitlement to fees and does not object to the hourly rate, but argues that the
number of hours expended is excessive. It objects in particular to the amount of time spent preparing
the request for attorney fees since the only issue that needed to be addressed is the amount of fees
and not whether fees should be awarded. The Court notes that nine hours in briefing the request for
attorney fees makes up more than forty percent of the total number of hours expended on the motion
to compel. Given that the brief is primarily recitation of the standard of review for an attorney fee
request along with creation of a billing statement, which would occur in the ordinary course of
business, the Court will discount this amount and finds that 4 hours of attorney time for briefing the

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fees request and reply is reasonable. The Court therefore awards 17.4 attorney hours at $275 per
hour, or $4,785.00.
For the foregoing reasons, the Court hereby GRANTS in part the Motion of
Plaintiff/Counterdefendant, Starin Marketing, Inc., to Assess Attorney’s Fees Pursuant to Fed. R.
Civ. P. 37(A)(5) [DE 149] and ORDERS Defendant/Counter Claimant Ultimate Support Systems
to reimburse Starin in the sum of $4,785.00 within a reasonable time.
SO ORDERED this 7th day of August, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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