WINE & CANVAS DEVELOPMENT LLC v. WEISSER et al

Filing 138

ORDER granting 105 Defendant Christopher Muylle's Application for Attorney's Fees. Signed by Magistrate Judge Denise K. LaRue on 7/31/2013. c/m (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

WINE & CANVAS DEVELOPMENT LLC,
Plaintiff,
vs.
THEODORE WEISSER,
CHRISTOPHER MUYLLE,
YN CANVAS CA, LLC doing business as
WWW.ART-UNCORKED.COM; doing
business as ART UNCORKED,
WEISSER MANAGEMENT GROUP, LLC,
ART SOCIAL, INC.,
FITNESS FIXX SERVICE, INC.,
Defendants.

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No. 1:11-cv-01598-TWP-DKL

ENTRY ON DEFENDANT CHRISTOPHER MUYLLE’S
APPLICATION FOR ATTORNEY’S FEES
This matter is before the Court on Defendant Christopher Muylle’s Application
for Attorney’s Fees. On June 7, 2013, the Court granted Defendant’s Motion to Compel
and ordered it to file a submission detailing the attorney’s fees incurred in association
with its Motion. [Dkt. 97.] Defendant Muylle (“Muylle”) filed his submission on June
21, 2013, requesting fees in the amount of $4,050.00.

[Dkt. 105.]

Plaintiff filed a

response on June 25, 2013. [Dkt. 109.] Muylle filed a reply on July 1, 2013. [Dkt. 110.]
Based upon the following, the Court hereby sanctions Plaintiff in the amount of
$1,815.00.

Award of Sanctions
The decision of what constitutes an appropriate sanction rests within the sound
discretion of the district court. Cheek v. Doe, 828 F.2d 395, 397 (7th Cir. 1987).
Defendant’s fee petition seeks a total award of $4,050.50. [Dkt. 105 at 2.] Plaintiff
generally argues that the requested amount is unreasonable because it exceeds the
amount of expenses incurred in “making the motion” as provided by Fed. R. Civ. P.
37(a)(5). Plaintiff asserts Defendant Muylle’s recovery should be limited to the April 29,
2013, entry of $330.00 related to the drafting of the Motion to Compel. Plaintiff does not
object to Defendant’s counsels’ requested hourly rate.
Even under Plaintiff’s narrow interpretation of Rule 37(a)(5), however,
Defendant Muylle is entitled to a larger fee award than the single entry reflecting
preliminary drafting of the Motion.

For example, on May 7 and May 8, 2013,

Defendant’s counsel reviewed Plaintiff’s pattern of non-compliance and revised the
Motion. In addition, entries from May 16 and June 4, 2013, reflect conference calls with
the Court to discuss this issue.

Time spent participating in discovery dispute

conference calls with the Court are compensable as sanctions following a motion to
compel.

Arrington v. La Rabida Children's Hosp., No. 06 C 5129, 2007 WL 1238998

(N.D.Ill. Apr.25, 2007).
The Court interprets Rule 37(a)(5) more broadly to include communications with
opposing counsel about delinquent discovery response in an effort to informally resolve
the dispute. See Heneghan v. City of Chicago, 2010 WL 3715142 (N.D. Ill.). Defendant
Muylle repeatedly contacted Plaintiff’s counsel concerning the discovery and agreed to
2

multiple extensions of time.

Plaintiff’s counsel consistently promised to provide

discovery responses then failed to do so. This non-compliance necessitated additional
fees for which Defendant Muylle should be compensated. While the Court finds that
communication with opposing counsel concerning this dispute are compensable,
Defendant should not be compensated for inter-firm communications between his
attorneys or communication between himself and his counsel.
Turning to the Declaration of Carol Nemeth Joven in Support of Christopher
Muylle’s Application for Fees, the Court noted many entries are “block billed” -- that is,
a single time entry reflects time spent on a number of different tasks without allocating
the specific amount of time spent on each of the different tasks. While block billing
does not provide the best possible description of attorneys’ fees, it is not a prohibited
practice. Farfaras v. Citizens Bank and Trust of Chicago, 433 F.3d 558, 569 (7th Cir. 2006).
The Court reduced “block billed” entries that reflect both compensable and noncompensable activities by fifty percent. The Court also excluded duplicative entries
that reflected the same tasks being performed by two attorneys such as the review of
opposing counsel’s emails. The Court’s fee award is based upon the following entries:
DATE
3-26-13

TIMEKEEPER
CNJ

4-3-13

CNJ

WORK PERFORMED

HOURS HOURS
BILLED ALLOWED
Sent email to Adam Davis re: status .20
.10
of discovery.
Exchanged emails
with Chris Muylle re: same
Exchanged emails with P. Adam .10
.05
Davis re: extension request to
respond to our discovery. Sent email
to R. Waicukauski re: status.

3

AMOUNT
27.50

13.75

4-16-13

CNJ

4-17-13

CNJ

4-19-13

CNJ

4-29-13

CNJ

5-1-13

CNJ

5-2-13

CNJ

5-3-13

CNJ

5-6-13

CNJ

Sent email to P. Adam Davis re:
status of discovery responses. Sent
email
to
Nancy
Webb
re:
calendaring for motion to compel
Reviewed email from P. Adam
Davis re: discovery.
Sent email to P. Adam Davis re:
send discovery responses or will file
motion to compel. Exchanged emails
with client and R. Waichukauski re:
same.
Prepared draft motion to compel.
Reviwed federal rules and local
rules re: same. Called magistrate’s
office per local rules and conferred
with staff. Conferred with J. LaRue
and Mr. Davis. Sent email to Chris
Muylle re: same.
Reviewed order of court on
discovery conference. Exchanged
several emails with P. Adam Davis
and R. Waichukauski re: status of
discovery. Sent emails to Chris
Muylle re: same.
Reviewed email from P. Adam
Davis re: status of discovery. Sent
email to R. Waichukauski and Chris
Muylle re: same.
Reviewed email from P. Adam
Davis re: status of discovery.
Exchanged emails with C. Muylle re:
upcoming conference, status of
discovery and lack of responses and
possible request for fees.
Exchanged several emails with P.
Adam Davis and C. Muylle re:
status of late discovery responses
and intent to file motion to compel.
Conferred with R. Waicukauski re:
same.

.20

.10

27.50

.10

.10

27.50

.20

.10

27.50

1.20

1.201

330.00

.20

.10

27.50

.10

.05

13.75

.30

.15

41.25

.40

.20

55.00

Since the majority of this entry reflects time the Court finds compensable as sanctions under this
Motion, it has exercised its discretion to not apply the fifty percent reduction.
1

4

5-7-13

CNJ

5-8-13

CNJ

5-16-13

CNJ

5-22-13

CNJ

5-28-13

CNJ

Reviewed several emails from P.
Adam Davis re: status of response.
Conferred with Nancy Webb and R.
Waicukauski re: same. Prepared
updated motion to compel, exhibits,
and proposed order. Reviewed
emails from P. Adam Davis re:
purported
attached
responses.
Exchanged emails with client and R.
Waicukauski re: same.
Conferred with Nancy Webb re:
status of discovery issues. Reviewed
email from P. Adam Davis and
lengthy
attachment.
Analyzed
potential pattern of non-compliance
by Davis. Exchanged emails with C.
Muylle, R. Waicukauski and N.
Webb re: same.
Prepared for and participated in
conference call with court and
counsel. Sent lengthy email to R.
Waicukauski
and
C.
Muylle
summarizing conference.
Exchanged emails with P. Adam
Davis re: deadline for response to
motion to compel and “emergency”
request for extension. Reviewed
rules re: same. Conferred with C.
Muylle and R. Waicukauski.
Reviewed email from P. Adam
Davis re: discovery. Sent email to R.
Waicukauski and C. Muylle re:
same. Sent email to P. Adam Davis
in response, requesting discovery
responses. Sent email re: response to
motion to compel.

2

1.50

.75

206.25

2.20

1.10

302.50

1.0

.50

137.50

.50

.25

68.752

.30

.15

41.25

The Declaration incorrectly references $55.00 as the fee amount for .50 hours billed. Based upon an
hourly rate of $275.00, the amount billed for .50 hours should be $137.50. The Court awards fifty percent
of this amount, or $68.75 for this entry.

5

5-29-13

CNJ

5-31-13

CNJ

6-3-13

CNJ

6-4-13

CNJ

6-10-13

CNJ

6-12-13

CNJ

6-17-13

CNJ

Email to P. Adam Davis re:
discovery issues (including no
response to date), CMP. Exchanged
emails with C. Muylle re: discovery
issues.
Conferred
with
R.
Waicukauski re: same.
Reviewed email from P. Adam
Davis re: discovery responses, etc.
Reviewed email from Michael
Houser re: P. Adam Davis ill and
sent discovery to clients.
Reviewed file to prepare for status
conference. Reviewed file re:
plaintiff’s
pattern
of
noncompliance. Sent email to C. Muylle
re: compliance with deadline for
special damages. Prepared memo re:
pattern
of
non-compliance.
Exchanged emails with Charlie
Meyer and R. Waicukauski re: status
conference.
Conferred with R. Waicukauski re:
preparation
for
conference.
Conferred with Magistrate. Sent
email to C. Muylle and R.
Waicukauski re: same.
Reviewed order from court on
motion to compel. Sent email to C.
Muylle re: same.
Began to prepare draft application
for fees and sent email to Nancy
Webb re: same and preparing draft
declaration and exhibits.
Reviewed Plaintiff’s motion for
extension. Exchanged emails with R.
Waicukauski and C. Muylle re:
same. Called and left message for P.
Adam Davis and conferred with
him.

.15

41.25

.20

.20

27.50

1.0

.50

137.50

.50

.25

68.75

.20

.10

27.50

.60

.30

82.50

.60

.30

82.50

TOTAL

6

.30

$1,815.00

The Court issues this award against Plaintiff, Wine & Canvas Development LLC,
and Plaintiff’s counsel, P. Adam Davis. Plaintiff and Plaintiff’s counsel will be jointly
and severally liable for $1815.50.
SO ORDERED.

07/31/2013
Date: _____________

Distribution:

_______________________________
Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana

THEODORE WEISSER
25 Rodeo Ave., Apt. 2
Sausalito, CA 94965
P. Adam Davis
DAVIS & SARBINOFF LLP
[e-mail]
Carol Nemeth Joven
PRICE WAICUKAUSKI & RILEY
[e-mail]
Ronald J. Waicukauski
PRICE WAICUKAUSKI & RILEY
[e-mail]

Charles Johnson Meyer
WOODARD EMHARDT MORIARTY MCNETT & HENRY, LLP
[e-mail]
William A. McKenna
WOODARD EMHARDT MORIARTY MCNETT & HENRY, LLP
[e-mail]

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