Young v. Dolgencorp, LLC

Filing 29

ORDER re: 23 Bill of Costs filed by Dolgencorp, LLC--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIANE YOUNG,
Plaintiff,
v.

Case No. 17-cv-10172
District Judge John Corbett O’Meara
Magistrate Judge Anthony P. Patti

DOLGENCORP, LLC,
Defendant.
___________________________________/
ORDER REGARDING DEFENDANT’S BILL OF COSTS (DE 23)
A.

Background
This lawsuit regarding the alleged events of December 12, 2013 was filed in

state court on December 8, 2016 and removed to this Court on January 19, 2017.
(DE 1, DE 1-2.) In May 2017, Defendant filed two motions: (1) a motion for
leave to file a third-party complaint (DE 11) and (2) a motion to compel answers to
interrogatories and request for production of documents (DE 12). Judge O’Meara
referred these motions to me for hearing and determination. Thereafter, I entered
an order granting Defendant’s motion for leave to file a third-party complaint and
noticed a hearing on the motion to compel. (DEs 14-16.)1

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A third party complaint was filed on June 8, 2017, but it has since been
dismissed. (DEs 17, 27.)

The hearing was never held. On June 19, 2017, I entered an order granting
Defendant’s motion to compel as unopposed, granting costs, and cancelling the
hearing noticed for June 22, 2017. (DE 20.) In part, my order provided:
Defendant is awarded its reasonable costs and attorney fees associated
with the preparation of this motion, pursuant to Fed. R. Civ. Pro.
37(a)(5) – and (b)(2), as it was necessitated by a failure to abide by a
previous discovery order (DE 7) – and shall submit an itemized bill of
costs for the Court’s consideration via ECF on or before June 24,
2017 in support thereof; thereafter, any specific objections to the
amount of fees or costs being sought must be filed by Plaintiff on or
before June 27, 2017.
(DE 20 at 2-3.) Defendant timely filed its bill of costs on June 22, 2017, seeking
reimbursement for 5.8 hours at an hourly rate of $180 for a total of $1,044.00. (DE
23.) To date, no related objections have been filed.
B.

Discussion
If an underlying discovery motion is granted, the applicable rule provides for

payment of “the movant's reasonable expenses incurred in making the motion,
including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A) (emphases added). Even
though Plaintiff has not filed objections to Defendant’s bill of costs, I have
reviewed the application in detail and conclude that, while Defendant is entitled to
reimbursement for some of the listed expenses, not all of them meet with Rule 37’s
standards.
As to the $180 hourly rate sought by attorney Fracassi, he is correct that the
median hourly rate by office location (Downtown Detroit & New Center area) is
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$275. See State Bar of Michigan, Economics of Law Practice in Michigan, 2014
(p. 9). As such, I conclude that $275 is a reasonable hourly rate and warrants an
upward departure from the rate sought in the application before the Court.
At the same time, I conclude that the asserted total of 5.8 hours spent on
various tasks over-reaches Rule 37’s reasonableness standard. Having considered
Plaintiff’s line-item chart, I conclude that he should not be reimbursed for the 0.8
hours incurred on May 3 through May 8. (DE 23 at 2.) These items pre-date the
seeking of concurrence and, therefore, can appropriately be considered as outside
the realm of expenses “incurred in making the motion[.]” Fed. R. Civ. P.
37(a)(5)(A). Moreover, I am not inclined to award compensation for the asserted
2.1 hours spent preparing the Bill of Costs. See Michigan Millers Mut. Ins. Co. v.
Westport Ins. Corp., No. 1:14-CV-00151-PLM, 2014 WL 5810309, at *5 n.5
(W.D. Mich. Nov. 7, 2014) (“The Court is not including the attorneys' time
preparing these affidavits or the fee petition in the award of costs.”).2 In any event,
it seems unreasonable that counsel would have spent almost as much time

2

In support of this statement, Magistrate Judge Green relied upon: (a) Fed. R. Civ.
P. 37(a)(5)(A); (b) Magistrate Judge Roberts’s decision in May v. F/V LORENA
MARIE, Official No. 939683, No. 3:09-CV-00114-SLG, 2012 WL 395286, at *6
(D. Alaska Feb. 7, 2012) (“Pursuant to case law, counsel may not include the
preparation of his declaration regarding costs and fees for inclusion in the Court's
award for sanctions.”) (footnote omitted); and (c) Judge Hunter’s order in
Addington v. Mid-Am. Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (“The[]$16.67
which defendant union seeks to recover is for time spent by counsel in preparing
his affidavit setting out his fees in obtaining this Court's Order Compelling
Discovery.”).
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preparing the Bill of Costs as he alleges to have done from the point of seeking
concurrence through reviewing the Court’s order (2.9 hours), and more time
preparing the Bill of Costs (2.1 hours) than was spent drafting the actual motion to
compel (1.9 hours). (DE 23 at 3.)
C.

Order
Accordingly, Defendant’s application for costs associated with its motion to

compel (DE 23) is GRANTED IN PART and DENIED IN PART. Within ten
(10) days of the date of this order, Plaintiff’s counsel shall reimburse Defendant in
the amount of $797.50 ($275 x 2.9 hours).
IT IS SO ORDERED.

Dated: August 31, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on August 31, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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