Uche v Montgomery Hospice, Inc. et al

Filing 99

MEMORANDUM OPINION and JUDGMENT on Attorney Fees. Fees awarded to Defendants against Plaintiff. Signed by Magistrate Judge Charles B. Day on 10/21/14. (c/m 10/21/14 ca2s, Deputy Clerk) Modified on 10/21/2014 (ca2s, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

MAUREEN UCHE,
Plaintiff,
v.
MONTGOMERY HOSPICE, INC., et
al.,
Defendants.

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Civil Action No.: ELH-13-878

MEMORANDUM OPINION
Before this Court is Defendants’ Motion for Attorneys’ Fees Incurred in Responding to
Plaintiff's Frivolous Motion for Protective Order (the “Motion”) (ECF No. 83). The Court has
reviewed the motions, related memoranda, and applicable law. No hearing is deemed necessary.
See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court GRANTS the
Motion in the amounts described below.
I.

Background
On March 24, 2013, Maureen Uche (“Plaintiff”) filed a complaint against Montgomery

Hospice, Inc., and Robert Washington (collectively “Defendants”) for failure to fairly
compensate Plaintiff for her work at Montgomery Hospice. ECF No. 1. On October 10, 2014,
this Court granted Defendants’ motion to dismiss. ECF No. 98. Prior to the dismissal of this
case, on February 4, 2014, Defendants attempted to depose Plaintiff, but the deposition was
frustrated by Plaintiff’s refusal to answer Defendants’ questions. On March 3, 2014, Defendants

filed a motion to compel deposition answers, for sanctions or dismissal, and for attorneys’ fees
incurred due to Plaintiffs’ frustration of the discovery process. ECF No. 53. Plaintiff responded
by bringing a motion for protective order on March 14, 2014. ECF No. 58. This Court denied
the motion for protective order on June 26, 2014, ruling that Plaintiff had “set forth no basis in
fact or law for the relief sought.” ECF No. 67. Plaintiff subsequently failed to attend a hearing
regarding Defendants’ motion to compel, for sanctions, and for fees (ECF No. 53), and the Court
granted the motion for fees on July 1, 2014. ECF No. 70. At that hearing, the Court also ordered
Defendants to file a separate motion within 30 days requesting a specific amount of attorneys’
fees. Id. Defendants filed the Motion on July 28, 2014—within the 30 day window. The
Motion requests $2,574.00 in attorneys’ fees.
II.

Discussion
Under the Federal Rules of Civil Procedure:
[i]f [a] motion [for protective order] is denied, the court . . . must, after giving an
opportunity to be heard, require the movant . . . to pay the party or deponent who opposed
the motion its reasonable expenses incurred in opposing the motion, including attorney's
fees. But the court must not order this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(B). The Court denied Plaintiff’s motion for protective order. Thus, so
long as Plaintiff’s motion was not “substantially justified” or other circumstances do not make an
award of expenses against Plaintiff unjust, Defendants are entitled to reasonable attorneys’ fees.
The Court will thus review whether these exceptions under the Federal Rules listed above apply.
a. Plaintiff’s motion for protective order was not “substantially justified.”
Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's claim or defense” and “[r]elevant
information need not be admissible at the trial if the discovery appears reasonably calculated to

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lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Defendants asked
reasonable questions at the deposition, such as whether a particular exhibit was Plaintiff’s
resume, whether Plaintiff believed, as she once alleged in a prior document, that she had worked
over 4,000 hours of overtime, and whether she had worked any other jobs before or after
working at Montgomery Hospice. This Court finds that these questions were reasonably
calculated to lead to the discovery of admissible evidence and were not abusive. Plaintiff’s
motion for protective order against answering these and other reasonable questions was thus not
“substantially justified.”
b. Other circumstances do not make an award of expenses unjust.
Plaintiff argues that Defendants’ Motion is incomplete because it does not cite legal
authority. However, Defendants’ Motion cites the Federal Rules, which are binding both on this
Court and on Plaintiff. Plaintiff argues further that the Motion is incomplete because it does not
cite to case law and is not in conformity with the requirements of Rule 8 of the Federal Rules.
Rule 8 details the requirements for proper pleadings, not motions. Fed. R. Civ. P. 8. Rule 7
describes the requirements for a proper motion, which are that the motion “state with
particularity the grounds for seeking the order” and “state the relief sought.” Fed. R. Civ. P.
7(b)(1). Defendants’ Motion states plainly that they contend they are entitled to relief under
Federal Rule 37 because the Court has denied Plaintiff’s motion for protective order and that
they request attorneys’ fees as relief. The Motion is in conformity with Rule 7.
Plaintiff argues further that an award of attorneys’ fees would be unjust because
Defendants have not proven that Plaintiff has the financial ability to pay the amount Defendants
have claimed. This is not required. While “the trial court has broad discretion to reduce the fee
award in light of mitigating factors, such as . . . the relative economic status of the litigants”

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(Arnold v. Burger King Corp., 719 F.2d 63, 68 (4th Cir. 1983)), neither the trial court nor the
moving party is required to do so.
Plaintiff relatedly argues that Defendants’ Motion is deficient because they have not
“set[] forth the reasonableness” of their requested fees. Plaintiff cites Ketchum v. Moses (24 Cal.
4th 1122 (2001)) as sole support for this contention. Ketchum is a California Supreme Court
case and is thus not binding on this Court. Ketchum discusses the appropriateness of an award of
attorneys’ fees under a California statute that provides attorneys’ fees to prevailing parties in
cases involving strategic lawsuits against public participation (or Anti-SLAPP lawsuits).
Ketchum, 24 Cal. 4th at 1127. Ketchum is thus not persuasive.
Finally, Plaintiff argued during the deposition that she was unwilling to answer the posed
questions because, as a pro se litigant, she did not understand which questions she was legally
required to answer. However, under our Local Rules, “[i]ndividuals representing themselves are
responsible for performing all duties imposed upon counsel by these Rules and all other
applicable federal rules of procedure.” Local Rule 101(1)(a) (D. Md.).
For the foregoing reasons, other circumstances do not make an award of attorneys’ fees
unjust, and Defendants are entitled to reasonable attorneys’ fees.
c. Determining Reasonable Fees
Defendants claim $2,574.00 in attorneys’ fees. The Supreme Court has established a
method, commonly called the “lodestar,” for determining a reasonable fee. The starting point in
the lodestar calculation is “the number of hours reasonably expended on the litigation multiplied
by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); see Robinson v.
Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). The Court has endorsed a list of
twelve factors, first articulated by the Fifth Circuit in Johnson v. Georgia Highway Express,

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Inc., 488 F.2d 714 (5th Cir. 1974), which aid a court in determining a reasonable fee. These
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.
Id. at 717–19. The Fourth Circuit has directed courts to consider these twelve factors when
calculating the lodestar amount. Robinson, 560 F.3d at 243–44. This Court has noted that in
ruling on an “award for a discovery dispute,” “the most relevant Johnson factors” may be “the
time and labor expended, the novelty and difficulty of the questions raised, the skill required to
properly perform the legal services rendered, and the experience, reputation and ability of the
attorneys.” Davis v. Rouse, WDQ-08-CV-3106, 2012 WL 3059569 (D. Md. 2012) (numbering
omitted). These factors are considered below.
1. Time and labor expended, and the reputation of the attorneys
The Fourth Circuit has held that a party seeking a fee award “must produce satisfactory
specific evidence of the prevailing market rates in the relevant community for the type of work
for which she seeks an award.” Robinson, 560 F.3d at 244 (citing Plyer v. Evatt, 902 F.2d 273,
277 (4th Cir. 1990) (citation omitted)). However, failing to provide affidavits from independent
counsel is not fatal, for the Court may rely on its own knowledge of the market in determining
reasonable fees for that community. While Plaintiff has not provided information regarding the
local market rates, the 2011 Local Rules provide guidelines for determining the applicable hourly
rates in Maryland during the period of this work:

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a.
b.
c.
d.
e.

Lawyers admitted to the bar for less than five (5) years: $150–190.
Lawyers admitted to the bar for five (5) to eight (8) years: $165–250.
Lawyers admitted to the bar for nine (9) to fourteen (14) years: $225–300.
Lawyers admitted to the bar for fifteen (15) years or more: $275–400.
Paralegals and law clerks: $95–115.

Local Rules App. B, 3 (D. Md.) (July 1, 2011). These billable rates reflect the presumption that
a more experienced attorney is deserving of greater hourly compensation because they are
expected to perform more efficiently. See Int’l Ass’n of Machinists & Aerospace Workers v.
Werner-Masuda, 390 F. Supp. 2d 479, 491 (D. Md. 2005).
Michael Neary, one of the counselors for Defendants and a principal at the law firm of
Lerch, Early & Brewer, Chtd., filed a declaration to support his contention that Defendants have
incurred $2,574.00 in attorneys’ fees in response to Plaintiff’s motion for protective order. ECF
No. 83, Ex. A. Defendants chose not to seek recovery of fees paid for the work of Mr. Marc
Engel, the other defense counselor.
According to his affidavit, Mr. Neary worked a total of 9.9 hours between March 27,
2014, and March 30, 2014, doing work related to opposing Plaintiff’s motion for protective
order. This work included performing research, preparing exhibits, and drafting and editing the
opposition to the motion for protective order. The opposition to the motion for protective order
dutifully responds to the arguments posed by Plaintiff’s counsel in the motion for protective
order. This Court finds the number of hours spent on the opposition to be appropriate.
Mr. Neary notes that he has been admitted to the bar for seven years and claims he is
owed compensation for attorneys’ fees at a rate of $260.00 per hour. Under our local rules, an
attorney who has been admitted to the bar for 5-8 years is entitled to a maximum rate of $250 per
hour of compensation for work that, like this work, was done between July 2011 and July 2014.

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Local Rules App. B, 3 (D. Md.) (July 1, 2011). Thus, Mr. Neary’s reasonable attorneys’ fees are
capped at $2,475.
2. The novelty and difficulty of the questions raised and legal skill required
Defendants’ counselor did not work on particularly novel or complex legal issues.
However, he did make a good faith effort to thoroughly respond to a particularly confusing
motion for protective order. The hours claimed appear reasonable, and this Court finds that
Defendants are entitled to the total amount of reasonable attorneys’ fees.
III.

Conclusion
For the foregoing reasons, the Court GRANTS the Motion for Attorneys’ Fees and

awards Defendants fees against Plaintiff in the amount of $2,475.00.

October 21, 2014

/s/
Charles B. Day
United States Magistrate Judge

CBD/sdh

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