Nguyen et al v. Louisiana State Board of Cosmetology et al

Filing 126

ORDER granting 97 Motion to Compel, to the extent it seeks an award of reasonable expenses and attorney's fees, although not to the extent requested. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/5/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

THOA T. NGUYEN, et al.

CIVIL ACTION

VERSUS

NO. 14-80-BAJ-RLB

LOUISIANA STATE BOARD
OF COSMETOLOGY, et al.

ORDER

Before the Court is Defendant Celia Cangelosi’s Motion to Compel (R. Doc. 97)
Plaintiff, Hien Hoang, to sufficiently respond to Defendant’s Request for Production Nos. 1-6, 916, 22-28 and 30, and Defendant’s Interrogatory Nos. 3, 4 and 24. Plaintiff filed an Opposition
(R. Doc. 110), claiming the Motion should be dismissed as moot, because Plaintiff has since
provided “all of the requested supplemental discoveries.” (R. Doc. 110 at 2).1 At the Court’s
request (R. Doc. 111), Defendant filed a Reply Memorandum addressing the sufficiency of
Plaintiff’s supplemental responses. (R. Doc. 112). For the reasons given below, Defendant’s
Motion to Compel is GRANTED to the extent it seeks an order compelling Plaintiff to produce

1

Plaintiff additionally argues that the Motion should be denied because (1) it is untimely and (2) Defendant failed to
confer as required by Rule 37(a)(1). First, Plaintiff confusingly argues that Defendant’s Motion “untimely” because
discovery is not due “until January 29, 2016 and filing the Motion to Compel was premature.” (R. Doc. 110 at 2).
Discovery must be completed and any related motions must be filed by January 29, 2016. Nonetheless, the parties
should conduct discovery and resolve any disputes, with or without the Court’s involvement, as early as possible in
order to meet the deadline. Defendant’s Motion is therefore not untimely, nor is it premature. Second, Defendant
complied with Rule 37(a)(1) before filing the instant Motion. Defendant first served her discovery requests on
March 16, 2015. (R. Doc. 97-3). After multiple attempts to obtain this information from Plaintiff, and multiple
unfulfilled promises to produce the outstanding discovery, Defendant properly moved to compel on October 29,
2015 – over 7 months after the requests were initially served.

the outstanding discovery described in Defendant’s Reply Memorandum, or otherwise confirm
that the outstanding discovery does not exist.
Outstanding Discovery
According to Defendant, the “supplemental written responses . . . are generally sufficient
and produce most of the information requested.” (R. Doc. 112 at 1). However, Defendant
clarifies that the responses “are only generally sufficient because they do not contain all of the
information requested.” (R. Doc. 112 at 1). Specifically, Defendant claims the following
information was not provided:
Request for Production No. 1 sought documents relating to the opening of Magic Nails,
which allegedly opened in 2010. (R. Doc. 112 at 2); (R. Doc. 97-6 at 1). Plaintiff’s supplemental
response simply stated: “Occupational License is attached.” (R. Doc. 110-5 at 8). Plaintiff,
however, failed to produce the Occupational License for Magic Nails. (R. Doc. 112 at 2).
Moreover, Plaintiff did not produce the Permit for Magic Nails, which he has allegedly claimed
to have in his possession. (R. Doc. 112 at 2). The Court further notes that Plaintiff did not raise
any objections to Request for Production No. 1 in his supplemental response.
Given Plaintiff’s representations, Plaintiff is ORDERED to produce both the
Occupational License and Permit for Magic Nails in response to Request for Production No. 1
within 7 days of this Order.
Request for Production No. 25 sought Plaintiff’s tax returns from the “opening of
Magic Nails to the present.” (R. Doc. 97-3 at 26). Plaintiff simply responded, “Attached,”
without raising any objections. (R. Doc. 110-5 at 12). However, Plaintiff provided his federal
tax returns for 2011 through 2014, but failed to produce his federal tax returns for 2010 — the
year in which he claims to have opened Magic Nails. Therefore, within 7 days of this Order,

Plaintiff is ORDERED to either produce a copy of his federal tax returns for 2010 or otherwise
confirm that his federal tax returns for 2010 do not exist – i.e. not in Plaintiff’s possession,
custody or control.
Interrogatory No. 6 and Request for Production No. 6 asked Plaintiff to identify any
employees working at Magic Nails on the dates of any inspections, to provide the addresses,
telephone numbers and contact information of those employees and any documents containing
that information. (R. Doc. 97-3 at 18, 23). Plaintiff provided the names of employees working at
Magic Nails on the dates of any inspections, but failed to provide the “addresses, telephone
numbers, or other contact information,” of the named individuals. (R. Doc. 97-3 at 6) (listing the
requested identifying and contact information). Moreover, Plaintiff did not raise any objections
to these discovery requests. Therefore, Plaintiff is ORDERED to produce the requested
identifying information or documentation pertaining to the employees named in his supplemental
response to Interrogatory No. 3, or otherwise confirm that the requested information does not
exist, within 7 days of this Order.
Request for Production Nos. 11 and 12 requested all documents showing the alleged
drop in patrons occurring after the first inspection of Magic Nails and all documents showing the
weekly and monthly number of patrons since the opening of Magic Nails in 2010. (R. Doc. 112
at 2). In his written response, Plaintiff claimed that the “only documents Plaintiff has at this time
are credit card receipts, tax returns, [and] bank statements.” (R. Doc. 110-5 at 9-10). Although
not explicitly named in his written responses, Plaintiff produced a “Form 1099-K from First Data
Merchant Services for 2013 only,” showing the “credit card receipts for each month during that
year.” (R. Doc. 112 at 3). Because First Data Merchant Services was allegedly the “credit card
servicer” for Magic Nails, Defendant contends that “similar 1099-Ks should be produced for

2010-12 and 2014.” (R. Doc. 112 at 3). The Court agrees. Therefore, Plaintiff is ORDERED to
produce the 2010, 2011, 2012 and 2014 Form 1099-Ks for Magic Nails, or otherwise confirm
that those forms do not exist, within 7 days of this Order.
Reasonable Attorney’s Fees and Expenses
As a final matter, Defendant seeks an order compelling Plaintiff to pay reasonable
attorney’s fees and expenses incurred in filing the instant Motion to Compel. (R. Doc. 97-1 at 1);
(R. Doc. 97-14). Along with her Motion, Defendant submits the affidavit of her attorney
explaining that counsel “expended approximately 15.8 hours in researching, drafting, revising,
and finalizing” the Motion, at a rate of $180.00 per hour.2 (R. Doc. 97-14 at 2).
Rule 37(a)(5)(A) provides that if a motion to compel “is granted — or if . . . discovery is
provided after the motion was filed — the court must, after giving an opportunity to be heard,
require” the opposing party, its attorney, or both, “to pay the movant’s reasonable expenses . . .
including attorney’s fees,” unless certain exceptions apply. Because the Court has granted
Defendant’s Motion to Compel and no exceptions apply, Defendant is entitled to an award of
reasonable expenses, including attorney’s fees. Plaintiff was given an opportunity to respond to
Defendant’s request for reasonable expenses and attorney’s fees. (R. Doc. 110). In his
Opposition, “[Plaintiff] prays that Defendant Cangelosi’s Motion to Compel Discovery Against
Hien Hoang, including attorney’s fees, expenses, and costs, be entirely denied; and that Plaintiff
recovers costs . . . .”3 (R. Doc. 110 at 1); (R. Doc. 110-1 at 10). Plaintiff, therefore, does not
address Defendant’s entitlement to fees under Rule 37(a)(5)(A), nor the reasonableness of the

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The Court accepts the hourly rate of $180.00 as reasonable. Moore v. United Parcel Service Co. of Delaware, 2013
WL 2018117, at *2 (M.D. La. May 13, 2013) (Bourgeois, Mag. J.) (rate of $195.00 per hour was reasonable).
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Because the Motion was granted, Rule 37(a)(5)(A) controls and it only permits an award of expenses to the
moving party. Cf. Fed. R. Civ. P. 37(a)(5)(B) (allowing an award of reasonable expenses to the opponent where the
motion is denied and certain exceptions do not apply); Fed. R. Civ. P. 37(a)(5)(C) (allowing the court to “apportion
the reasonable expenses for the motion” between the parties where the motion is granted in part and denied in part).

rate or amount requested. Nonetheless, the fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours expended and hourly rates.4
The only information before the Court is the affidavit of counsel. While not necessarily
required in every case, the Court does not have any billing records or any breakdown of the time
and expenses attributable to the specific categories of work set forth in the affidavit. Compare
Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490-91 (5th Cir. 2012)
(affidavits detailed the amount of time spent on each task and included other “supporting
evidence”).
Considering the sum of fees requested and the number of hours at issue, there is not
sufficient information for the Court to determine that the entirety of time spent should be ordered
as reimbursable expenses. For example, the Motion to Compel primarily consists of a detailed
chronology of events and a listing of the discovery requests at issue and their responses. The
affidavit, however, indicates that a portion of the time spent involved research, but does not
indicate the quantity of time attributed to such research. The Court is likewise unable to
determine whether the time spent on the other various activities contained in the affidavit are
also recoverable.
The Court is not suggesting that the time reflected in the affidavit is inaccurate. Rather,
the Court is simply unable to determine that the information before it is sufficient to prove the
reasonableness of the amount of hours expended. The Court will reduce the amount of fees
requested by Defendant to $900.00. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“Where
the documentation of hours is inadequate, the district court may reduce the award accordingly.”);

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Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995); see also Bode v. U.S., 919 F.2d 1044,
1047 (5th Cir. 1990) (“the party seeking reimbursement of attorneys’ fees . . . can meet [its] burden only by
presenting evidence that is adequate for the court to determine what hours should be included in the
reimbursement”).

Leroy v. City of Houston (Leroy II), 906 F.2d 1068, 1080-81 (5th Cir. 1990) (striking hours
where the movant “did not breakdown . . . the number of hours . . . spent on the various discrete
tasks”). This result is more consistent with other orders of this Court providing for similar relief.
Therefore,
IT IS ORDERED that Defendant’s Motion to Compel is GRANTED to the extent it
seeks an award of reasonable expenses and attorney’s fees, although not to the extent requested.
The Court finds Defendant entitled to an award of $900.00 in reasonable expenses and attorney’s
fees.
The record demonstrates that Plaintiff has not cooperated during discovery and has been
either unwilling to produce documents or unwilling to affirmatively state whether certain
documents exist. Therefore, Plaintiff must pay Defendant $900.00 in reasonable expenses and
attorney’s fees within 45 days of this Order.
Signed in Baton Rouge, Louisiana, on January 5, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE