Franks v. State of Nebraska

Filing 50

ORDER granting 31 Motion for Attorney Fees. Fees awarded to defendant and against plaintiff and/or his counsel. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY S. FRANKS,
Plaintiff,
v.
STATE OF NEBRASKA,
Defendant.

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4:10CV3145

MEMORANDUM AND ORDER

The defendant filed a motion to compel on May 31, 2011, claiming the plaintiff failed
to provide complete answers to Defendant’s First Set of Interrogatories under oath, and failed
to fully respond to defendant’s First Set of Requests for Production of Documents. (Filing
No. 21). The plaintiff failed to respond to the motion to compel. The motion was deemed
unopposed and was granted. The court further held:
[T]he defendant attempted in good faith to resolve this discovery dispute
before filing a motion to compel, the plaintiff’s failure to fully respond to
discovery at issue on defendant’s motion to compel was not substantially
justified, and an award of attorney fees in favor of the defendant is warranted.
Filing No. 26, p. 1.
The defendant has now moved for an award of attorney fees. In support of its motion,
the State’s counsel, Ryan Gilbride, has submitted an affidavit explaining:
•

He has been a lawyer for ten years;

•

Based on his experience and knowledge of the market, the reasonable hourly
rate for the services he provided in preparing the State’s motion to compel is
$200 per hour;

•

He spent a total of eight hours preparing the motion to compel, support brief,
and index of evidence; including three hours of legal research, two hours spent

reviewing, redacting, and compiling the supporting evidence, and three hours
writing the motion and brief.
Filing No. 33-1, pp. 3-4.
The plaintiff objects to the defendant’s attorney fee request because: 1) he has
provided “volumes of discovery,” and “has gone above and beyond to get all the information
the Defendant requires,” (filing no. 42, p. 4); 2) he “knows that the Defendant's records may
have been destroyed,” and 3) and the defendant’s evidence in support of his attorney fee
request is insufficient because it lacks specificity regarding who performed the work and the
amount of time spent in preparing the motion, and lacks a reliable basis for assessing the
market value of the attorney services performed by defense counsel. Filing No. 42, p. 4.

The plaintiff’s arguments lack merit. The plaintiff waived any objections to the scope,
breadth, or burden of responding to defendant’s discovery when he failed to fully respond
to the defendant’s discovery requests, and then failed to respond to the motion to compel.
And any claim that the defendant destroyed documents is neither supported by evidence, nor
material to calculating the amount owed for the time defendant expended to compel
plaintiff’s compliance with discovery.

The evidence of record indicates defendant’s counsel completed the research, writing
and compilation of evidence to file defendant’s motion to compel. Based on the opinion of
defense counsel and the court’s own knowledge of prevailing rates, $200.00 per hour is a
reasonable rate for the services performed by defendant’s counsel in preparing and filing the
motion. After reviewing the defendant’s filings on the motion to compel, the court also finds
the amount of attorney time expended (eight hours) was reasonable.

Accordingly,

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IT IS ORDERED:
1)

The defendant’s motion for attorney fees, (filing no. 31), is granted, and the
sum of $1600 in attorney fees is awarded to the defendant and against the
plaintiff and/or his counsel.

2)

The clerk shall enter this award as part of the judgment eventually entered in
this case, unless at or before the time judgment is entered, the clerk is notified
by the defendant that the award has been paid.

DATED this 22nd day of September, 2011.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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