Smith v. Bradley Pizza, Inc. et al

Filing 242

ORDER in Response to 230 Letter to Magistrate Judge. See Order for details. (Written Opinion). Signed by Magistrate Judge Katherine M. Menendez on 9/13/2019. (BJP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Scott Smith,

Case No. 0:17-cv-2032-ECT-KMM
Plaintiff,

v.

ORDER

Bradley Pizza, Inc., and Pamela M. Dahl,
Defendants.
The District Court granted the defendants’ motion for summary judgment, this
case has been closed, and Mr. Smith has filed a notice of appeal. Nevertheless, the
matter is before the Court on the defendants’ request that Mr. Smith be required to
pay the reasonable expenses they incurred in responding to his motion to compel
discovery. [Defs.’ Letter, ECF No. 230.] For the reasons that follow, the Defendants’
request is granted in part.

The November 13th Order
On November 13, 20181 the Court denied Mr. Smith’s motion to compel
discovery, which asserted that Ms. Dahl failed to sign an initial set of answers to his
interrogatories and that the defendants improperly refused to produce financial
information.2 Specifically, the Court found that Ms. Dahl signed supplemental and
amended answers to interrogatories “that effectively supersede[d] any earlier answers”
and that the initial set of interrogatories “were propounded before Ms. Dahl was even
served with this lawsuit.” The Court also found that Mr. Smith brought his motion
with respect to Ms. Dahl’s financial information prematurely, as her responses to the
relevant discovery requests were not due at the time the motion was filed. As to these
first two issues, the Court found that Mr. Smith’s position was not substantially
justified and that an award of expenses was appropriate under Fed. R. Civ. P.
1
2

Order (Nov. 13, 2018) (“November 13th Order”), ECF No. 159.
Pl.’s Mot. to Compel, ECF No. 138.

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37(a)(5)(B). Finally, the Court concluded that Bradley Pizza’s financial information
was not relevant, but reasoned that Mr. Smith’s position was substantially justified, so
no award of expenses was appropriate.3
The Court instructed defense counsel to file a short letter memorandum and
any affidavits, declarations, and exhibits to establish the expenses and fees incurred in
responding to Mr. Smith’s motion. The Order required defense counsel to exclude
any request for reimbursement of the fees and expenses reasonably attributable to the
request for Bradley Pizza’s information. And the Court required defense counsel to
file its requests within fourteen days, providing seven days for Mr. Smith’s response.4
The Court also granted portions of the relief sought by the Defendants in their
own motion to compel, but limited the bases to recovery of fees to one portion of
that motion. Specifically, the Court: (1) granted in part and denied in part the
Defendants’ request for production of settlement information; (2) granted the
Defendants’ request for a refund of expert-witness fees they were required to pre-pay
for the depositions of Mr. Smith’s expert, Peter Hansmeier; and (3) granted in part the
Defendants’ request that their expert, Julie Quarve-Peterson, be paid reasonable
expert-witness fees. With respect to the first two issues, the Court found that
expenses should not be apportioned for those issues. The Court also found that
Mr. Smith need not pay an award of expenses in contesting the motion to compel
Ms. Quarve-Peterson’s travel time or time spent preparing for her deposition.
However, the Court found that “Mr. Smith’s refusal to pay [Ms. Quarve-Peterson’s]
full hourly rate was not substantially justified, and the Defendants are entitled to an
award of expenses incurred in bringing the motion to compel on that issue.” The
Court permitted the Defendants to request payment of those expenses when filing the
letter addressing the fee-shifting discussed above.5

The November 16th Order
After the Court issued the November 13th Order, the parties filed a stipulation
regarding the submission of the letter memoranda and supporting documents on the

3
4
5

November 13th Order at 2–7.
November 13th Order at 7.
November 13th Order at 7–17.

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issue of fee-shifting.6 Mr. Smith indicated that he intended to object to the Court’s
ruling on his motion to compel. On November 16, 2018, the Court adopted the
parties’ stipulation and “modifie[d] the Court’s [November 13th] Order … to permit
the submission of Defendants’ memorandum and fee petition to be filed within 14
days of the District Court’s ruling on Plaintiff’s objection to the Order at Docket
Entry 159, with Plaintiff’s response thereto due within 5 days of Defendants’
submission.”7

The Fee Petition and Response
On June 12, 2019, the District Court entered summary judgment in favor of
the Defendants, essentially concluding that the Court lacks jurisdiction because the
architectural barriers complained of in Mr. Smith’s Complaint have been remedied.8
After the parties’ efforts at resolving their dispute regarding the fees discussed in the
November 13th Order failed,9 the Defendants filed a letter brief requesting payment
of $3,873.50. [Defs.’ Letter at 1–3.] In arriving at this number, defense counsel
attempted to “evaluate[] the discovery motions as a whole, since defendants’ counsel’s
work on the motions was interrelated,” and then reduced the requested fees to reflect
the matters the Court found were appropriate for shifting fees. [See id. at 2–3.]
Defense counsel indicates that his firm billed the Defendants a total of $6,351.50 for
work on the parties’ motions addressed in the November 13th Order. The $3,873.50
fee request represents a reduced hourly rate for lead defense counsel, Edward Sheu,
and includes discounts for supervisory work, duplicative effort, and other reasonable
reductions. [Decl. for Defs.’ Attorney-Fee Request (“Fee Decl.”) ¶¶ 2–3, 10–12, 16,
ECF No. 230-1.]
In response to the fee petition, Mr. Smith asks for a substantial reduction of
the amount of a fee shifting award, arguing that he should be required to pay no more
than $984.20. [Pl.’s Resp. at 5, ECF No. 231.] First, Mr. Smith argues that $1,225
should be eliminated from the Defendants’ request for an award of fees because
several of the time entries reflect expenses that the Defendants would have incurred
Stipulation, ECF No. 161.
Order (Nov. 16, 2019), ECF No. 162.
8
Opinion and Order (June 12, 2019), ECF No. 228.
9
See Suppl. Decl. for Defs.’ Attorney-Fee Request, Ex. A (email chain indicating that the parties conferred
regarding the propriety of the amount of fees, if any, that are recoverable as a result of the Nov. 13th Order), ECF No.
234-1.
6
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regardless of the issues that the Court found supported fee-shifting. [Id. at 1–2 (citing
Fox v. Vice, 563 U.S. 826 (2011), and Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct.
1178 (2017)).] Second, he argues that an October 4, 2018 entry for $245 should be
removed from the request because it is unclear how much time was attributable to the
preparation of the Defendants’ motion to compel as opposed to other, non-covered
tasks. [Id. at 2.] Third, Mr. Smith ask the Court to reduce the requested fee award by
an additional $138 for defense counsel’s review of the Smith deposition, suggesting it
cannot be reasonably related to the issue of Ms. Quarve-Peterson’s appropriate hourly
rate. [Id. at 2–3.] Fourth, Mr. Smith objects to the Defendants’ request for
reimbursement of 5.25 hours of defense counsel’s time spent drafting the Defendants’
motion to compel because the portion of that motion attributable to the issues
concerning Ms. Quarve-Peterson’s hourly rate could not have taken so long to
complete. [Id. at 3–4.] Fifth, Mr. Smith argues that he should receive an overall 10%
discount based on his assertion that defense counsel must have given Defendants
substantial discounts for the work performed in this case. [Id. at 4–5.] And finally,
Mr. Smith requests that the award be reduced by an additional $175 to compensate
for the portion of time that is reasonably attributable to Mr. Smith moving to compel
Bradley Pizza’s signature on discovery responses, which were not supplied until after
the hearing. He suggests he is entitled to such an award under Fed. R. Civ. P.
37(a)(5)(A). [Id. at 5.]

Discussion
The lodestar method is the starting point for determining the amount of a
reasonable attorney’s fee. In re National Hockey League Players’ Concussion Injury Litig.,
MDL No. 14-2551, 2017 WL 3276873 (D. Minn. Jul. 31, 2017) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). To determine the lodestar, the Court multiplies a
reasonable number of hours expended on the motion by a reasonable hourly billing
rate. Id. The reasonable rate is what is typical for similar work in the community in
which a case is being litigated, and “district courts may rely on their own experience
and knowledge of prevailing market rates” in determining what is reasonable. Id.
(quoting Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005)). Courts have considerable
discretion in determining whether attorneys’ fees are reasonable. See Hensley, 461 U.S.
at 437. “As a concession to the mortality of judges, the law does not require a lineitem review of fee applications.” Romeo & Juliette Laser Hair Removal, Inc. v. Assara I,
LLC, No. 08 CIV. 442 (TPG)(FM), 2013 WL 3322249, at *3 (S.D.N.Y. July 2, 2013),
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aff’d, 679 F. App’x 33 (2d Cir. 2017) (quoting O’Toole v. Allied Interstate, LLC, No. 12
Civ. 4942(WHP), 2012 WL 6197086, at *1 (S.D.N.Y. Dec. 12, 2012)).
Here, the Court finds that the $350 hourly rate for Mr. Sheu and the $230
hourly rate for his co-counsel, Mr. Linnerooth, are reasonable hourly rates. The time
entries reflected in the documentation supporting the fee petition indicate that
Messrs. Sheu and Linnerooth spent 17.85 combined hours on the issues that were
reasonably attributable to the specific issues for which the Court found that feeshifting was appropriate in the November 13th Order. Prior to the hearing,
Mr. Linnerooth spent 10.45 hours, for a total of $2,403.50 in fees. Mr. Sheu spent 5.9
hours prior to the hearing, but provided courtesy write offs for 4.2 hours of that time.
This amounts to a total of $595 in fees for Mr. Sheu’s time. With both Mr. Sheu and
Mr. Linnerooth appearing at the hearing for 1.5 hours each, this resulted in an
additional $875 in fees. Thus, the fee petition arrives at the request for $3,873.50.
Here, the Court agrees that some reduction of the time spent by
Mr. Linnerooth in drafting the Defendants’ motion to compel discovery and
supporting documentation is appropriate. The portion of the motion devoted to
required payment of Ms. Quarve-Peterson’s full hourly rate should not have taken
5.25 hours of Mr. Linnerooth’s time to prepare. However, the Court will not reduce
this portion of the fee petition to a single hour of compensable time as Mr. Smith
requests. Instead the Court will reduce the overall fees requested for Mr. Linnerooth’s
entry on October 9, 2018 to $500, which the Court finds reflects a reasonable
proportion of the fees attributable to the issue of Ms. Quarve-Peterson’s full hourly
rate.
The Court also agrees that a reduction is appropriate for the time billed on
October 5, 2018 for reviewing Mr. Smith’s deposition for use in connection with the
motion to compel. The billing records submitted by defense counsel do not show
how this was related to the response to the plaintiff’s motion to compel or that
portion of the Defendants’ motion to compel for which fee-shifting was approved.
This results in an additional reduction of $138 for 0.6 hours of Mr. Linnerooth’s time.
Mr. Smith contends that the Defendants would have incurred the fees reflected
in the fee petition’s entries for September 30, 2018, October 3, 2018, and October 30,
2018, even if Smith had not taken the positions that this Court found were not
substantially justified. To support his argument that such fees are unrecoverable, he
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cites Fox v. Vice, in which the Supreme Court held that when a plaintiff’s civil rights
lawsuit includes some frivolous claims and other non-frivolous claims, a court may
still award reasonable fees to the defendant pursuant to 42 U.S.C. § 1988, but the
court may only award fees that the defendant would have incurred but for the
frivolous claims. 563 U.S. at 836 (“[I]f a frivolous claim occasioned the attorney’s fees
at issue, a court may decide that the defendant should not have to pay them. But if the
defendant would have incurred those fees anyway, to defend against non-frivolous
claims, then a court has no basis for transferring the expense to the plaintiff.”).
Mr. Smith has not cited a case applying the “but for” standard adopted for fee
awards under § 1988 to a court’s decision to award fees pursuant to Fed. R. Civ. P.
37(a)(5), but it appears some courts have done so. See, e.g., 246 Sears Road Corp. v.
Exxon Mobil Corp., No. 09-cv-889 (NGG)(JMA), 2013 WL 4506973, at *2 (E.D.N.Y.
Aug. 22, 2013) (citing the “but for” standard from Fox in the context of adopting a
magistrate judge’s recommendation that the plaintiff be required to pay the
defendant’s reasonable expenses, including attorney’s fees, in opposing the plaintiff’s
unsuccessful motion to compel discovery); Romeo and Juliette Laser Hair Removal, 2013
WL 3322249, at *3 (same). The Court agrees that the Defendants have not established
that the fees reflected in fee petition’s entries for September 30th, October 3rd, and
October 30th of 2018, were incurred but for the unjustified positions taken by
Mr. Smith in his own motion to compel and in response to the Defendants’ motion to
compel. Accordingly, the Court will reduce the award to the Defendants by an
additional $1225.
The Court finds Mr. Smith’s remaining points of contention to be
unsupported, speculative, and otherwise unpersuasive. As a result, the Court is
reducing the requested fees in the Defendants’ fee petition by $2,070.50. Consistent
with the foregoing, IT IS HEREBY ORDERED THAT the Defendants’ fee
petition is GRANTED IN PART and Mr. Smith, his counsel, or both shall pay the
Defendants $1,803.00 to compensate for the reasonable expenses Defendants
incurred in responding to the unjustified positions taken by Mr. Smith in support of
his motion to compel discovery and in opposition to the Defendants’ motion to
compel.

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Date: September 13, 2019

s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge

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