Jiang v. Porter et al

Filing 213

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that plaintiff's fee application [Doc. # 179 ] is granted.IT IS FURTHER ORDERED that, within thirty (30) days of the date of this Order, the SNAP defendants shall pay to the plaintiff the sum of $25,150.00, representing attorneys' fees incurred in connection with bringing the motion for sanctions.. Signed by District Judge Carol E. Jackson on 5/3/17. (KKS)

Case: 4:15-cv-01008-CEJ Doc. #: 213 Filed: 05/03/17 Page: 1 of 7 PageID #: 1875

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA PORTER, et al.,
Defendants.

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Case No. 4:15-CV-1008 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s application to recover attorney’s
fees from defendants Survivors Network of Those Abused by Priests (SNAP), David
Clohessy, and Barbara Dorris (the “SNAP defendants”). The SNAP defendants have
filed a response.
I. Background
On August 22, 2016, the Court granted the plaintiff’s motion for sanctions,
based on the SNAP defendants’ failure to comply with discovery orders.
Additionally, the Court found that plaintiff was entitled to recover attorneys’ fees
and costs incurred in bringing the motion. As directed by the Court, plaintiff has
now submitted documentation reflecting the attorneys’ fees incurred.
II. Discussion
Federal Rule of Civil Procedure 37(b) authorizes district courts to impose
sanctions upon parties who fail to comply with discovery orders. Rule 37(b)(2)(C)
provides that “the court must order the disobedient party, the attorney advising
that party, or both to pay the reasonable expenses, including attorney's fees,

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caused by the failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(b)(2)(C). “In
order to impose sanctions under Rule 37, there must be an order compelling
discovery, a willful violation of that order, and prejudice to the other party.”
Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir.1999). Where an award of
attorneys’ fees is warranted, the amount must be reasonable.

Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). The amount of attorney hours reasonably
expended on a matter multiplied by a reasonable hourly rate is an acceptable
method of calculating a reasonable attorneys’ fees award. Perdue v. Kenny A. ex
rel. Winn, 130 S. Ct. 1662, 1672 (2010).

Time spent on a matter that is

"excessive, redundant, or otherwise unnecessary" is not reasonable. El-Tabech v.
Clarke, 616 F.3d 834, 842 (8th Cir.2010) (quoting Hensley, 461 U.S. at 434).
A. Hourly Rates
Plaintiff requests an hourly rate of $350.00 per hour for hours expended by
D. John Sauer and an hourly rate of $200.00 per hour for hours expended by
Michael Martinich-Sauter.

“As a general rule, a reasonable hourly rate is the

prevailing market rate, that is, ‘the ordinary rate for similar work in the community
where the case has been litigated.’” Moysis v. DTG Datanet, 278 F.3d 819, 828–29
(8th Cir. 2002) (quoting Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir. 2001)).
Plaintiff submitted declarations from both Sauer and Martinich-Sauter describing
their educational backgrounds and prior experience, as well as documents showing
that the requested rates are within the standard range for litigators in the St. Louis
area with similar experience. Defendants did not contest the hourly rates put forth
by plaintiff. Based upon a review of plaintiff’s affidavits and materials submitted in
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support, and in light of defendants’ failure to contest the reasonableness of the
hourly rates, the Court finds that the hourly rates sought by plaintiff’s attorneys are
reasonable.
B. Hours Expended
The plaintiff seeks compensation for 91.4 hours that his counsel expended on
tasks that were necessitated by the SNAP defendants’ violation of orders compelling
discovery. The tasks for which fees are sought are as follows:
(1) Motion for Sanctions
Plaintiff states that 22.60 hours were expended in researching and drafting
the motion for sanctions.

The SNAP defendants do not dispute this and do not

contest the reasonableness of the number of hours claimed. Therefore, plaintiff will
be awarded attorneys’ fees incurred in connection with the motion for sanctions.
(2) Fee Application
Plaintiff seeks an award of fees for 6.10 hours for research and drafting the
fee application. The number of hours claimed is not disputed. Therefore, plaintiff’s
request will be granted.
(3) Motions to Reconsider and/or Stay
Plaintiff seeks an award of fees for 14.30 hours for researching and drafting
oppositions to the SNAP defendants’ motions to reconsider and/or stay the order
compelling discovery entered on June 27, 2016. The SNAP defendants argue that
they were not in “non-compliance” when it filed the motions, and thus shouldn’t be
required to pay any fees incurred in connection with the motions.
The June 27 order directed the SNAP defendants to produce documents and
answer interrogatories by July 11, 2016. Instead of complying with the order, the

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SNAP defendants filed a motion for reconsideration on July 12, 2016 and a motion
to stay on July 13, 2016.

By failing to provide documents and answers to

interrogatories by the July 11 deadline, the SNAP defendants were not in
compliance with the June 27 order. Both motions constituted no more than a
rehash of arguments that were previously asserted by the defendants and that
were rejected by the Court. Nevertheless, plaintiff was required to respond to the
motions in his ongoing quest to obtain discovery.

Thus, it is appropriate that

plaintiff recover fees incurred in responding to defendants’ motions.
(4) Motion to Certify for Interlocutory Appeal
After the SNAP defendants missed the July 11 deadline, the Court allowed
them additional time, until July 22, in which to comply with the order compelling
discovery.

The SNAP defendants did not produce the court-ordered discovery by

the new deadline. Instead, on August 8, they filed motion again seeking to stay the
June 27 order and seeking to certify the order for interlocutory appellate review
under 28 U.S.C. § 1292.

Plaintiff seeks an award of fees for 14.70 hours for

researching and drafting an opposition to the motion to stay and to certify.
The SNAP defendants argue that plaintiff’s request should be denied, because
§ 1292 does not provide for attorney’s fees. Their argument misses the point. The
issue here is not whether attorneys’ fees are recoverable under § 1292. The issue
is plaintiff’s entitlement to attorneys’ fees in responding to the SNAP defendants’
continued efforts to avoid compliance with the June 27 order.
Further, as the Court previously noted, the SNAP defendants were not
entitled to interlocutory or collateral appellate review of a Rule 37 sanctions order,
a civil contempt order, or an adverse privilege ruling. See Coca-Cola Co. v. Purdy,

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382 F.3d 774, 792 (8th Cir. 2004) (“The imposition of sanctions for civil contempt
during the course of a pending action is an appealable final order only if the person
held in contempt is not a party to the pending action.”); Tenkku v. Normandy Bank,
218 F.3d 926, 927 (8th Cir. 2000) (stating that Cunningham v. Hamilton County,
527 U.S. 198 (1999), “held that a sanctions order against a party or her attorney is
not an appealable final order”); cf. Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,
113 (2009) (“In short, the limited benefits of applying ‘the blunt, categorical
instrument of § 1291 collateral order appeal’ to privilege-related disclosure orders
simply cannot justify the likely institutional costs.’” (quoting Dig. Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 883 (1994))). Rule 37, interpreted consistent
with its purposes, authorizes an award encompassing all expenses, whenever
incurred, which would not have been sustained had the opponent conducted itself
properly. Comiskey v. JFTJ Corp., 989 F.2d 1007, 1012 (8th Cir. 1993).
The filing of the motion to stay and to certify for interlocutory appeal did not
excuse the SNAP defendants from complying with the June 27 order.

The fees

plaintiff incurred in connection with responding to the motion are properly
compensable.

Therefore, plaintiff’s request for attorneys’ fees incurred in

connection with the interlocutory appeal motion will be granted.
(5) Motion to Intervene
Plaintiff seeks an award of fees for 25.10 hours for researching and drafting
opposition to an emergency motion to intervene and to stay the June 27 order that
was filed by several non-parties. The SNAP defendants argue that they should not
be required to pay attorneys’ fees in connection with a motion they didn’t file.
What the defendants fail to acknowledge, however, is that they filed a motion

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seeking to join in the intervenors’ motion. Thus, the SNAP defendants adopted and
endorsed the action taken by the intervenors.

As with the motions discussed

above, the motion to intervene represented yet another effort to thwart discovery
and to provide the SNAP defendants another excuse for not complying with the
June 27 order.

The Court finds it appropriate to grant plaintiff’s request for

attorneys’ fees incurred in connection with the motion to intervene.
(6) Communications with SNAP Defendants
Plaintiff seeks an award of fees for 1.50 hours for sending communications to
counsel for the SNAP defendants seeking compliance with the orders compelling
discovery.

The Court finds that the communications were necessary and the

amount claimed is reasonable.

Plaintiff’s request for an award of fees for 1.50

hours will be granted.
(7) Preparing Reply in Support of Fee Application
Plaintiff seeks an additional award of fees for 7.1 hours for time expended
preparing the reply to defendants’ response to plaintiff’s fee application.

Plaintiff

incurred this expense in pursuing discovery sanctions which this Court authorized.
Accordingly, the request will be granted.
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For the reasons discussed above,
IT IS HEREBY ORDERED that plaintiff’s fee application [Doc. #179] is
granted.
IT IS FURTHER ORDERED that, within thirty (30) days of the date of
this Order, the SNAP defendants shall pay to the plaintiff the sum of $25,150.00,

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representing attorneys’ fees incurred in connection with bringing the motion for
sanctions.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of May, 2017.

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