Bremmer et al v. Appleton Electric, LLC et al
ORDER granting Appleton's 171 Application for Fees. Appleton is awarded reasonable costs and attorneys fees in the amount of $2,091.15, for having to prepare for and take a second deposition. The plaintiff and his attorney, Christopher A. Sievers, shall have forty-five days from the date of this Order to pay Appleton the sum of $2,091.15, and file verification of payment with the court. Ordered by Magistrate Judge Thomas D. Thalken. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WASTE CONNECTIONS, INC.,
APPLETON ELECTRIC, LLC,
This matter is before the court on the defendant’s, Appleton Electric, LLC
(Appleton), Second Application for Fees. See Filing No. 171 - Application. Appleton
filed an index of evidence (Filing No. 172) in support of the application. The court gave
the plaintiff, Waste Connections, Inc. (WCI), until May 7, 2014, to respond. See Filing
No. 153 - Order. WCI did not file a response.
WCI’s action arises from an injury Rick Bremmer (Bremmer) sustained on
Appleton’s premises (Appleton Facility). See Filing No. 1-1 - Complaint. On May 25,
2011, Bremmer was at the Appleton Facility to deliver an order for WCI when Bremmer
fell into an open pit approximately twenty feet by twenty feet wide and five feet deep and
allegedly sustained a torn rotator cuff and herniated disc. Id. ¶¶ 9-13, 18-19. Generally,
WCI alleges Appleton’s negligence caused Bremmer’s injuries. Id. ¶¶ 18-21. Appleton
generally denies WCI’s allegations and asserts several affirmative defenses. See Filing
No. 1-1 - Answer ¶¶ 3-4.
This application for fees is before the court following Appleton’s successful
motion to compel a second Fed. R. Civ. P. 30(b)(6) deposition of WCI’s corporate
representative. The circumstances preceding the court’s award of costs and fees for
the failed Rule 30(b)(6) deposition are discussed in the court’s previous orders. See
Filing Nos. 93 and 153 - Orders. The court awarded Appleton $2,846.90 for having to
file the motion to compel and granted Appleton leave to file a second application for
costs and fees associated with the second deposition if the parties were unable to agree
upon an adequate award. See Filing No. 153 - Order. Obviously, the parties were
unsuccessful at reaching an agreement, hence the second application.
On May 2, 2014, Appleton’s counsel, Brandan Mueller (Mr. Mueller), wrote WCI’s
counsel, Christopher A. Sievers (Mr. Sievers), to inform Mr. Sievers of Appleton’s
request for fees and costs associated with taking the second deposition. See Filing No.
172-2 - Emails. Mr. Mueller requested $3,711.15 in legal fees and court reporter costs.
Id. Mr. Sievers responded on May 4, 2014, and offered to pay the $438.74 1 for the
court reporter bill and an additional $185 for one hour of Mr. Mueller’s time. Id. Mr.
Sievers objected to the charges related to preparing for the second deposition. Id. On
May 5, 2014, Mr. Mueller replied and noted agreeing to pay for one hour of his time
would not even cover the amount of time spent in the deposition, which lasted over
three hours. Id. On the same day, Mr. Sievers responded “the only costs and fees for
the second deposition are 1. The court reporter fee, and 2. the time it took you to
question Mr. Bowman about the subjects he wasn’t prepared to answer [at the first
deposition.” Id. On May 6, 2014, counsel conferred but were unable to reach an
agreement. See Filing No. 172-1 - Mueller Decl. ¶ 10.
Subsequently, on May 6, 2014, Appleton filed the instant application for an award
of $3,711.15 in costs and fees for the second deposition.
See Filing No. 171 -
Application. Appleton provided an itemization of work counsel performed. See Filing
No. 172-1 - Mueller Decl. ¶ 3. Mr. Mueller, a partner at Husch Blackwell, LLP, spent
10.1 hours preparing for and taking the deposition.2 Id. Appleton argues the time spent
taking the second deposition should be awarded because it is clearly associated with
taking the deposition. See Filing No. 171 - Application. Appleton also argues the time
counsel prepared for the deposition should be awarded because, in light of the delay
between the first and second deposition, Appleton’s counsel could not have adequately
served Appleton’s interests without taking time to prepare for the deposition. Id.
The court reporter bill was $438.75. Presumably this was a typographical error in the email and
Mr. Sievers did not object to the remaining one cent.
Although the total hours billed is listed as 18.4, adding the three itemized entries equals 10.1
hours. See Filing No. 172-1 - Mueller Decl. ¶ 3. The discrepancy is likely attributable to Mr. Mueller
recycling the graph used in support of Appleton’s first application for fees. Compare Filing No. 172-1 Mueller Decl. ¶ 3 with Filing No. 118-1 - Newman Decl. ¶ 3. This also explains why the total dollars billed
is $3,523.70 instead of $3,272.40, as Mr. Mueller initially requested in his email to Mr. Sievers. See Filing
No. 172-2 - Emails.
After review of the defense counsel’s affidavit and billing records, the court finds
the amount sought in Appleton’s application is only partly reasonable and correct. First,
the court will award the court reporter costs of $438.75 as Mr. Sievers agreed to pay
this amount. Second, the court will award a portion of the legal fees as explained
below. Review of the graph shows Mr. Mueller worked 10.1 hours at $324 an hour for a
total bill of $3,272.40. See Filing No. 172-1 - Mueller Decl. ¶ 3. Although WCI did not
respond to Appleton’s second application for fees, Mr. Sievers’ challenge in his emails
to the preparation fees has some merit.
Nevertheless, Appleton would not have
incurred any of these expenses had WCI fulfilled its obligations under Fed. R. Civ. P.
30(b)(6). The deposition began at 8:00 a.m. and ended at 11:05 a.m. See Filing No.
147-1 - Bowman Depo. This roughly equates to 3.1 billed hours for the deposition. The
remaining seven hours were used to prepare for the deposition, which the court finds
Appleton has not sufficiently explained why seven hours were
necessary. The court will award Appleton for the 3.1 hours Mr. Mueller spent taking the
deposition plus two hours of preparation at $324 an hour because Mr. Mueller likely had
to parse through the first deposition transcript and familiarize himself with the deposition
questions. This amount equals $1,652.40. Adding the court reporter fee to the legal
fees equals $2,091.15.
The court finds sanctions in the amount of $2,091.15, for time spent preparing for
and taking the second deposition, reasonable. See Fed. R. Civ. P. 37(a)(5)(A); see
also Fed. R. Civ. P. 11(c)(4). This monetary sanction will be assessed against WCI and
his attorney, Christopher A. Sievers. Accordingly, Appleton’s application will be granted
in the amount of $2,091.15. Upon consideration,
IT IS ORDERED:
Appleton’s Application for Fees (Filing No. 171) is granted. Appleton is
awarded reasonable costs and attorney’s fees in the amount of $2,091.15, for having to
prepare for and take a second deposition.
The plaintiff and his attorney, Christopher A. Sievers, shall have forty-five
days from the date of this Order to pay Appleton the sum of $2,091.15, and file
verification of payment with the court.
Dated this 9th day of May, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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