Stevens et al v. U.S. Bank National Association et al

Filing 48

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.
:
v.

:

Civil Action No. DKC 15-1780

:
U.S. BANK NATIONAL ASSOCIATION,
et al.
:
MEMORANDUM OPINION AND ORDER
Plaintiffs

Valerie

M.

Stevens

and

Famesha

Okoeka

(“Plaintiffs”) filed this action in state court on April 6,
2015, against Defendants U.S. Bank National Association (“U.S.
Bank”)

and

USAA

“Defendants”).

Federal

Savings

(ECF No. 7).

Bank

(“USAA”)

(collectively,

After removal to the United States

District Court for the District of Maryland, a scheduling order
was

entered.

(ECF

No.

32).

Shortly

thereafter,

counsel

for

Plaintiffs moved to withdraw at their request (ECF No. 34), and
Plaintiffs

were

notified

that

they

were

proceeding

without

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

granted.

(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.

(Id.).

On August 16, USAA moved for discovery sanctions, reciting
that

Plaintiffs

requests,

and

still

had

not

additionally

had

responded
failed

to

to

the

appear

discovery
for

their

properly noticed depositions.

(ECF No. 41).

U.S. Bank filed a

similar motion on August 29.

(ECF No. 42).

Again, Plaintiffs

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).

Plaintiffs

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
fees.
November

(Id.).
18,

Plaintiffs did not respond.
the

court

granted

Accordingly, on

Defendants’

motions

for

sanctions, dismissed Plaintiffs’ complaint with prejudice, and
provided Defendants fourteen days to supplement their request
for reasonable expenses, including attorneys’ fees.

2

(ECF No.

46).

USAA filed a supplemental motion for attorneys’ fees on

December 2 (ECF No. 47), which Plaintiffs have not opposed.1
USAA

requests

an

award

of

reasonable

attorneys’

fees

incurred in connection with: (1) its motion to compel discovery
(ECF

No.

38);

(2)

its

motion

for

sanctions

for

Plaintiffs’

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
and

appearance

2016.”

for

the

Plaintiffs’

(ECF No. 41, at 12).

depositions

on

July

29,

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
rate.

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
attorney’s

fees

as

sanction

for

discovery

violation);

CoStar

Grp., Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 787 (D.Md. 2000)
1

U.S. Bank did not supplement its request for attorneys’

fees.
2

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
billing judgment.
3

(same).
those

“An hourly rate is reasonable if it is ‘in line with

prevailing

lawyers

of

in

the

reasonably

reputation.’”

Duprey

community

for

comparable

v.

Scotts

similar

skill,

Co.,

30

services

experience,

F.Supp.3d

by
and

404,

412

(D.Md. 2014) (quoting Blum v. Stenson, 465 U.S. 886, 890 n.11
(1984)).
hours

In determining what constitutes a reasonable number of

and

rate,

the

court

considers

the

factors

set

out

in

Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir.
1978).

See

also

Local

Rule

109.2.

This

court

has

also

established presumptively reasonable rates in Appendix B to its
Local Rules.

See, e.g., Duprey, 30 F.Supp.3d at 412 (citing

Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 509
(D.Md. 2000)).

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
Mr.

Green,

who

have

been

practicing

since

2008

and

2012,

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
rate.

In the absence of such evidence, the court may rely on

its own knowledge of the market.
788.

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
4

Mr. Green’s experience.
and

Mr.

DeBard’s

See Local Rules, App’x B.

rates

are

presumptively

As Mr. Cole

reasonable

and

unchallenged, the court finds that they are reasonable.

In

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
granted,

as

it

was

here,

“the

court

must,

after

giving

an

opportunity to be heard, require the party . . . 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.”

The

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
justified;”

or

(3)

expenses unjust.”
USAA

made

a

“other

Id.

good

make

an

award

of

None of the three exceptions apply here.

faith

contacting Plaintiffs.

circumstances

attempt

to

resolve

the

(See ECF No. 41, at 13).

issue

by

Plaintiffs

have provided no justification for their failure to respond to
5

the discovery requests and have put forth no reason why the
award

of

attorneys’

fees

would

be

unjust.

USAA’s

billing

records describe the work performed and the hours, to the tenth
of an hour, expended on each task.
Local Rule 109.2.
hours

on

the

(ECF No. 47, at 2-3); see

The records reflect that Mr. Cole spent 1.6

motion

to

compel,

and

Mr.

DeBard

spent

2.6.

Although the number of hours expended are well-documented with
specificity,

USAA

offers

no

explanation

or

justification

supporting the need for multiple lawyers to work on this case,
and it appears that there was some unreasonable duplication of
hours.

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
award.

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
order

the

party

failing

to

act. . . to
6

pay

the

reasonable

expenses,
unless

including

the

attorney’s

failure

was

fees,

caused

substantially

by

the

justified

circumstances make an award of expenses unjust.”
37(d)(3); id. 37(b)(2)(C).

failure,
or

other

Fed.R.Civ.P.

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
find

that

their

failure

to

participate

in

discovery

was

substantially justified or that circumstances make an award of
expenses

unjust.

USAA’s

billing

records

describe

the

work

performed and the hours, to the tenth of an hour, expended on
each task.
records

(ECF No. 47, at 3); see Local Rule 109.2.

reflect

that

Mr.

Cole

spent

3.2

hours

The

appearing

at

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.

The

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.
for

sanctions

unopposed,

and

and
it

the

appears

duplication of hours.
the

amount

of

request
that

for
there

Both the motion

attorneys’
was

some

fees

were

unreasonable

The court finds that attorneys’ fees in

$3,000.00

are

reasonable

expenses

caused

by

Plaintiffs’ failure to comply with the discovery order or appear
at their depositions.
7

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.
not

“reasonable

compel,

expenses

Fed.R.Civ.P.

incurred

37(a)(5)(A),

in
as

making
this

the

work

court’s order granting the motion to compel.

These are
motion”

followed

to
the

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
they

were

incurred

before

Plaintiffs

had

failed

to

appear.

Accordingly, the requested hours are unreasonable and will not
be awarded.
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
States

District

Court

for

the

District

of

Maryland,

ORDERED

that:
1.

The supplemental motion for attorneys’ fees filed by

Defendant USAA Federal Savings Bank (ECF No. 47) BE, and the
same hereby IS, GRANTED;
2.

Plaintiffs Valerie M. Stevens and Famesha Okoeka BE,

and the same hereby ARE, ORDERED to pay Defendant USAA Federal

8

Savings

Bank

$4,000.00

in

attorneys’

fees

pursuant

to

Fed.R.Civ.P. 37(a)(5)(A); (b)(2)(C); (d)(3); and
3.

The

clerk

will

transmit

copies

of

this

Memorandum

Opinion and Order to pro se Plaintiffs directly and to counsel
for Defendants and CLOSE this case.

/s/
DEBORAH K. CHASANOW
United States District Judge

9