Dunne, Jr. v. Resource Converting, LLC et al

Filing 382

MEMORANDUM AND ORDER GRANTING MOTION FOR ATTORNEY FEES : IT IS HEREBY ORDERED that plaintiff's motion for attorney fees (Doc. 327 ) is sustained in that plaintiff is awarded attorney fees against defendants Resource Converting LLC, Tim Danley, and Rick Kersey, jointly and severally, in the amount of $27,393.50.. Signed by Magistrate Judge David D. Noce on 3/15/19. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TOM DUNNE, JR.,
Plaintiff,
v.
RESOURCE CONVERTING, LLC,
TIM DANLEY,
RICK KERSEY,
SEBRIGHT PRODUCTS, INC.,
GARY BRINKMANN,
NEWWAY GLOBAL ENERGY, LLC,
DAVID WOLF,
JERRY FLICKINGER, and
JWR, INC.,
Defendants.

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No. 4:16 CV 1351 DDN

MEMORANDUM AND ORDER
GRANTING MOTION FOR ATTORNEY FEES
Before the Court is the motion of plaintiff Tom Dunne Jr. for attorney’s fees and
costs (Doc. 328) resulting from the Court's October 30, 2018 order (Doc. 314) sustaining
his motion to compel pretrial production of documents by defendants Resource
Converting LLC, Tim Danley, and Rick Kersey ("RCI defendants"). (Doc. 310). RCI
defendants oppose the motion, and have also filed a motion for reconsideration of the
Court’s October 30, 2018 order. (Doc. 352).

BACKGROUND
This is the latest round of discovery disputes in a contentious case.

The

proceedings leading up to this motion are highly relevant, and the parties characterize
these proceedings and their impact differently, so the Court will discuss them in detail.

On October 13, 2017, plaintiff filed its first motion to compel production of
documents, alleging that despite plaintiff’s good-faith efforts to resolve discovery
disputes, RCI defendants’ counsel had instructed their clients not to search for or produce
documents responsive to plaintiff’s document requests. (Doc. 203). The RCI defendants
responded, and the plaintiff replied, and the Court heard oral arguments on November 3,
2017. (Docs. 209, 218, 219). The Court concluded that the motion to compel must be
granted, instructing plaintiff to file a motion for attorney fees. (Docs. 220, 239). After
reviewing plaintiff’s motion for fees, the RCI defendants’ objections in response, and
plaintiff’s reply, the Court awarded plaintiff $16, 477.75 in attorney fees.
However, the RCI defendants failed to fully comply with the Court’s order and
produce all of the relevant documents. While the Court was still considering the motion
for fees, and nearly three months after the motion to compel was granted on November 6,
2017, plaintiff filed a motion to enforce the Court’s order and second motion to compel
production of documents on February 20, 2018. (Doc. 254). One week later, the RCI
defendants filed a lengthy response with multiple exhibits. (Doc. 258). Plaintiff replied,
and the Court held a hearing on April 10, 2018, at which counsel for the RCI defendants
appeared and defended his clients’ position. (Docs. 261, 274). The case was then stayed
for several months pending the related trial in the Southern District of Iowa, and the
Court denied the pending motion as moot without prejudice to being refiled if the Court
resumed proceedings in September 2018. (Doc. 292).
Plaintiff refiled the motion upon the lifting of the stay, and the Court allowed
further arguments at a status conference on October 29, 2018. (Docs. 310 and 313). The
RCI defendants’ counsel had filed a motion to withdraw three days before, on October
26, 2018, and appeared at the hearing without fully participating in arguments. (Doc.
312). The Court took the matter under submission based on the parties’ previous briefs
and arguments, ultimately granting plaintiff’s motion to enforce the Court’s order and
second motion to compel and ordering (1) the RCI defendants to produce the responsive
documents in a format reasonably usable to plaintiff and (2) that plaintiff file an affidavit

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of fees and costs incurred in preparing, filing, and prosecuting the second motion to
compel. (Doc. 314).
Plaintiff then filed his motion and affidavit of fees for the second motion to
compel, claiming $49,337.50, approximately three times the amount claimed for the
initial motion. (Doc. 327). The parties filed responses, replies, and sur-replies. (Docs.
334, 349, 350, 351, 360).
The RCI defendants simultaneously filed a motion for reconsideration of the
Court’s order granting plaintiff’s second motion to compel.

(Doc. 352).

Plaintiff

objected and the RCI defendants replied. (Docs. 359 and 363).
The Court heard arguments on the pending motion for attorney fees and motion
for reconsideration at a February 1, 2019 status conference. Accordingly, all of the
discovery motions in this case have been extensively argued, with multiple opportunities
for both sides to present their positions.
.
DISCUSSION

Motion for Reconsideration
The RCI defendants move this Court to reconsider its order enforcing discovery
sanctions, claiming that plaintiff’s motion was ruled without an adequate response from
the RCI defendants. (Doc. 352). Defendants bring this as a “motion for reconsideration”
with reference to Federal Rule of Civil Procedure 7(b). The Federal Rules of Civil
Procedure do not mention motions for reconsideration, only motions to alter or amend
judgments (under Rule 59) and motions for relief from judgments or orders (under Rule
60). Neither of these Rules applies here, because the order defendants seek to have
reconsidered is not a final judgment or order, but rather an interlocutory or nondispositive decision.
The Court nevertheless has authority to reconsider its own interlocutory decisions.
It has inherent authority, and Rule 54(b) further provides that “any order or other
decision, however designated, that adjudicates fewer than all the claims or the rights and
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liabilities of fewer than all the parties . . . may be revised at any time before the entry of a
judgment.”
Some language in Eighth Circuit case law suggests that motions to reconsider “are
nothing more than Rule 60(b) motions when directed at non-final orders.” Elder–Keep v.
Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (citing Anderson v. Raymond Corp., 340 F.3d
520, 525 (8th Cir. 2003) and Broadway v. Norris, 193 F.3d 987, 989 (8th Cir. 1999)).
However, this language appears to be dicta and has been criticized for failing to
recognize courts’ inherent authority. See Garrett v. Albright, No. 4:6 CV 4137 NKL,
2008 WL 268993, at *2 n.2 (W.D. Mo. Jan. 30, 2008) (expressing disagreement
with Elder–Keep and noting that the standard for reconsideration of final judgments
should be much higher than for interlocutory orders, and finding that because a district
court has inherent authority to reconsider interlocutory orders, “the exceptional hurdles of
Rule 60 should not apply”); Disc. Tobacco Warehouse, Inc. v. Briggs Tobacco &
Specialty Co., No. 3:9 CV 5078 DGK, 2010 WL 3522476, at *2 (W.D. Mo. Sept. 2,
2010) (holding that a district court has greater discretion to grant a motion to reconsider
an interlocutory order than a motion under Rules 59 or 60, and concluding that it would
reconsider an interlocutory order only upon a showing that (1) the moving party did not
have a fair opportunity to argue the matter previously and (2) a significant error
necessitated granting the motion).
While the standard for reconsideration of an interlocutory order is not well
established, the Court adopts the test set out in Briggs Tobacco, as it adequately accounts
for the Court’s interest in judicial economy and respect for the finality of its decisions
while also allowing any mistakes that might occur to be corrected: the Court will
reconsider an interlocutory order “only if the moving party demonstrates (1) that it did
not have a fair opportunity to argue the matter previously, and (2) that granting the
motion is necessary to correct a significant error.” Briggs Tobacco, 2010 WL 3522476 at
*2. The Court agrees that the standard is less exacting than it would be for a final order.
See Garrett, 2008 WL 268993, at *2 n.2.

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As discussed above, the parties had a fair opportunity to argue the matter. The
Court allowed for extensive briefing and arguments on all of the matters at issue in the
motion to enforce and second motion to compel. The fact that the matter was denied as
moot during a stay and then refiled upon the lifting of the stay does not nullify the
previous proceedings.

The RCI defendants had multiple opportunities to argue the

motion and otherwise cooperate with plaintiff on discovery matters. The Court only
issued its order after several months of non-compliance, both before and after the
imposition of the stay. The RCI defendants have also not shown any significant error in
the Court’s order that must be corrected. Accordingly, the motion for reconsideration is
denied.

Motion for Attorney Fees
Plaintiff requests fees at the following rates for the indicated hours:
Individual

Hours

Attorney Barry Haith
Attorney Jonathan Waldron

Hourly Rate Total

11.1
1.35

$365

$6,241.50

$295
$255
$240

$295.00
$8,466.00
$660.00

12.2

5

$18,222.75

1
33.2
2.75

TOTAL

$315

17.1

Paralegal Amy Beck
Litigation Support Michael D. Cole
Paralegal Keenan J. Barker
Litigation Support Kristine D. Goettsch
Paralegal Assistant Tracy R. Pace

$4,606.50
$384.75

57.85

Attorney Landon W. Magnusson
Attorney James Redd IV
Attorney Matthew Rogers

$415
$285

$250

$3,050.00

4.5
1.45
4
20.15
7.55

$250
$220
$220
$200
$140

$1,125.00
$319.00
$880.00
$4,030.00
$1,057.00

174.2

$49,337.50

The parties do not dispute the hourly rates of any of the individuals.1 Rather, they
contest the time expended, with plaintiff claiming all hours related to defendant’s
noncompliance and the RCI defendants asserting that the hours should be limited to only
those expended in the preparation and prosecution of the motion to compel. The Court
agrees that the hours claimed are excessive.
Under Federal Rule of Civil Procedure 37(a)(5)(A), the Court must award “the
movant's reasonable expenses incurred in making the motion [to compel discovery],
including attorney's fees.”

F. R. Civ. P. 37(a)(5)(A).

Plaintiff’s exhibit detailing

counsel’s timekeeping includes a variety of activities, many of which predate the filing of
the motion to compel by several months. As this Court noted in its Order granting the
motion for fees on plaintiff’s first motion to compel, the Court ought to compensate a
movant for pre-motion due diligence effort. However, this will not extend to unrelated
activities, or general discovery communications far removed from the motion itself.
Plaintiff’s affidavit of time claims hours in excess of what is reasonable, and including
activities that are not related to the action before this Court. For example, one entry for
1.6 hours includes in its activities “Revised EDMO MTC for purposes of filing in SDIA.”
(Doc. 327, Ex. 2, at 2). Another for 1.65 hours includes general review of the discovery
production to locate information. (Doc. 327, Ex. 2, at 1). The Court does not order
attorney fees for general discovery review or unrelated discovery matters, but only for
time spent on relevant due-diligence efforts and directly preparing the motion to compel.
Where unrelated activities were included in the narrative without specifying the time
spent on each activity, the Court excluded the time entry. Finally, the Court finds that the
attorneys’ efforts on February 19, 2018 (12.4 hours for attorney Waldron); April 9, 2018
(10 hours for attorney Waldron), and the hours of attorney Redd on the re-filed motion
and memorandum to enforce the Court’s order (31.6 hours), appear excessive and the

1

The affidavit includes three different hourly rates for attorney Jonathan Waldron and
two different hourly rates for Matthew Rogers. In awarding fees, the Court will use the
same hourly rates for these attorneys as it approved in the previous motion for attorney
fees, namely $285 per hour and $240 per hour, respectively.
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Court reduces them by 50 percent. After carefully reviewing the time submitted, the
Court finds that 96.55 hours were reasonably expended for a total of $27,393.50.

Individual

Hours

Attorney Barry Haith
Attorney Jonathan Waldron

Hourly Rate Total

9.5
51.6

Paralegal Amy Beck
Litigation Support Kristine D. Goettsch
TOTAL

$3,942.50
$14,706.00

1
15.8
11.65

Attorney Landon W. Magnusson
Attorney James Redd IV
Attorney Matthew Rogers

$415
$285
$295
$255
$240

$295.00
$4,029.00
$2,796.00

4.5
2.5

$250
$200

$1,125.00
$500.00

96.55

$27,393.50

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for attorney fees (Doc. 327) is
sustained in that plaintiff is awarded attorney fees against defendants Resource
Converting LLC, Tim Danley, and Rick Kersey, jointly and severally, in the amount of
$27,393.50.

/S/ David D. Noce
l
UNITED STATES MAGISTRATE JUDGE
Signed on March 15, 2019.

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