Stevens et al v. U.S. Bank National Association et al
MEMORANDUM OPINION and ORDER GRANTING 47 supplemental motion for attorneys' fees, ORDERING Plaintiffs to pay Defendant USAA Federal Savings Bank $4,000.00 in attorneys fees, and DIRECTING the clerk to CLOSE this case (c/m to Plaintiffs 5/8/17 sat). Signed by Judge Deborah K. Chasanow on 5/8/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VALERIE M. STEPHENS, et al.
Civil Action No. DKC 15-1780
U.S. BANK NATIONAL ASSOCIATION,
MEMORANDUM OPINION AND ORDER
(“Plaintiffs”) filed this action in state court on April 6,
2015, against Defendants U.S. Bank National Association (“U.S.
(ECF No. 7).
After removal to the United States
District Court for the District of Maryland, a scheduling order
Plaintiffs moved to withdraw at their request (ECF No. 34), and
counsel (ECF No. 35).
On June 14, 2016, USAA filed a motion to compel responses
to interrogatories and requests for production of documents as
to both Plaintiffs, and moved for attorneys’ fees, reciting that
neither Plaintiff had responded to its discovery requests or to
attempts to confer.
(ECF No. 38).
Plaintiffs did not file a
response to the motion and, on July 6, the motion to compel was
(ECF No. 39).
Plaintiffs were ordered to provide full
responses no later than July 22, and they were forewarned that
failure to provide discovery could result in dismissal of their
complaint and an order to pay USAA’s expenses.
On August 16, USAA moved for discovery sanctions, reciting
properly noticed depositions.
(ECF No. 41).
U.S. Bank filed a
similar motion on August 29.
(ECF No. 42).
did not respond.
On October 31, the court ordered Plaintiffs to
show cause within fourteen days why their complaint should not
be dismissed with prejudice and why they should not be ordered
to pay reasonable attorneys’ fees.
(ECF No. 45).
were warned that failure to respond to the order would result in
the dismissal of their complaint without further notice and an
order providing Defendants an opportunity to file a request for
Plaintiffs did not respond.
sanctions, dismissed Plaintiffs’ complaint with prejudice, and
provided Defendants fourteen days to supplement their request
for reasonable expenses, including attorneys’ fees.
USAA filed a supplemental motion for attorneys’ fees on
December 2 (ECF No. 47), which Plaintiffs have not opposed.1
incurred in connection with: (1) its motion to compel discovery
failure to comply with the July 6th order compelling discovery
and failure to appear for depositions (ECF No. 41); and (3) its
“efforts to obtain discovery responses, and with the noticing
(ECF No. 41, at 12).
In total, USAA seeks $5,179.50 for
18.8 hours of work performed by three attorneys: Andrew L. Cole,
Allen M. DeBard, and Alexander R. Green.2
To determine the proper fee award, the court starts with
the “lodestar” figure, which is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see Int’l
Ass’n of Machinists & Aerospace Workers v. Werner-Masuda, 390
F.Supp.2d 479, 490 (D.Md. 2005) (using lodestar method to award
Grp., Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 787 (D.Md. 2000)
U.S. Bank did not supplement its request for attorneys’
The time records included in USAA’s supplement reflect
20.6 hours. The court assumes that USAA intended to deduct the
difference, 1.8 hours performed by Mr. Green, in its exercise of
“An hourly rate is reasonable if it is ‘in line with
(D.Md. 2014) (quoting Blum v. Stenson, 465 U.S. 886, 890 n.11
In determining what constitutes a reasonable number of
Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir.
established presumptively reasonable rates in Appendix B to its
See, e.g., Duprey, 30 F.Supp.3d at 412 (citing
Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 509
In addition, the specific facts of the case are
to be considered in calculating a reasonable figure.
USAA submits that hourly rates of $315 for Mr. Cole, who
has been practicing law since 1999, and $240 for Mr. DeBard and
respectively, are below the prevailing hourly rates customarily
charged in the local legal community.
(ECF No. 47, at 4-5).
USAA has provided no evidence regarding the prevailing market
In the absence of such evidence, the court may rely on
its own knowledge of the market.
CoStar Grp., 106 F.Supp.2d at
The requested rates are within the guidelines range for
Mr. Cole and Mr. DeBard, but above the suggested range based on
Mr. Green’s experience.
See Local Rules, App’x B.
As Mr. Cole
unchallenged, the court finds that they are reasonable.
light of the court’s knowledge of rates charged for similar work
by lawyers practicing before this court and in the absence of
any evidence that Mr. Green’s requested rate is reasonable and
consistent with the prevailing market rates, Mr. Green’s hourly
rate will be reduced to $225.
Rule 37(a)(5)(A) provides that if a motion to compel is
opportunity to be heard, require the party . . . whose conduct
necessitated the motion, the party or attorney advising that
incurred in making the motion, including attorney’s fees.”
awarding of expenses and fees is mandatory unless the court
finds that one of three exceptions applies: (1) “the movant
filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;” (2) “the opposing
party’s nondisclosure, response, or objection was substantially
None of the three exceptions apply here.
(See ECF No. 41, at 13).
have provided no justification for their failure to respond to
the discovery requests and have put forth no reason why the
records describe the work performed and the hours, to the tenth
of an hour, expended on each task.
Local Rule 109.2.
(ECF No. 47, at 2-3); see
The records reflect that Mr. Cole spent 1.6
Although the number of hours expended are well-documented with
supporting the need for multiple lawyers to work on this case,
and it appears that there was some unreasonable duplication of
The motion to compel was necessitated by Plaintiffs’
failure to make any response to USAA’s discovery requests, and
the motion itself was unopposed.
USAA also cannot recover for
Mr. Cole’s effort to contact Plaintiffs in order to obtain the
discovery without court action as a reasonable expense incurred
in making the motion, and this time will be deducted from its
Accordingly, USAA’s requested award of $1,285.50 for
attorneys’ fees incurred in making the motion to compel will be
reduced to $1,000.00.
Rule 37 also requires a court to award certain reasonable
attorneys’ fees and expenses when a party has failed to comply
with a court order or has failed to attend its own deposition.
Instead of or in addition to other sanctions, “the court must
act. . . to
circumstances make an award of expenses unjust.”
37(d)(3); id. 37(b)(2)(C).
As Plaintiffs did not respond to the
court’s order directing them to show cause why they should not
be ordered to pay reasonable attorneys’ fees, the court cannot
substantially justified or that circumstances make an award of
performed and the hours, to the tenth of an hour, expended on
(ECF No. 47, at 3); see Local Rule 109.2.
Plaintiffs’ scheduled depositions and working on the motion for
sanctions and 2.4 hours on the supplemental fee request, and
that Mr. Green spent 7.3 hours on the motion for sanctions.
number of hours expended are well-documented with specificity,
but USAA offers no explanation or justification supporting the
need for multiple lawyers to work on this case.
duplication of hours.
Both the motion
The court finds that attorneys’ fees in
Plaintiffs’ failure to comply with the discovery order or appear
at their depositions.
Finally, USAA includes in its request 1.2 hours of Mr.
Cole’s time spent reviewing the court’s discovery orders and
communicating with Plaintiffs and U.S. Bank regarding deposition
scheduling prior to Plaintiffs’ failure to appear.
court’s order granting the motion to compel.
The fees also
cannot be “reasonable expenses . . . caused by the failure” to
appear for the depositions, id. 37(b)(2)(C); 37(d)(3), because
Accordingly, the requested hours are unreasonable and will not
For the foregoing reasons, the court finds that an award of
attorneys’ fees in the amount of $4,000.00 is reasonable and
will be awarded to USAA.
Accordingly, it is this 8th day of May, 2017, by the United
The supplemental motion for attorneys’ fees filed by
Defendant USAA Federal Savings Bank (ECF No. 47) BE, and the
same hereby IS, GRANTED;
Plaintiffs Valerie M. Stevens and Famesha Okoeka BE,
and the same hereby ARE, ORDERED to pay Defendant USAA Federal
Fed.R.Civ.P. 37(a)(5)(A); (b)(2)(C); (d)(3); and
Opinion and Order to pro se Plaintiffs directly and to counsel
for Defendants and CLOSE this case.
DEBORAH K. CHASANOW
United States District Judge
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