Bourne v. Arruda
Filing
133
ORDER denying 132 Motion to Strike. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samuel J. Bourne
v.
Civil No. 10-cv-393-LM
John R. Arruda, Jr., et al.
O R D E R
Before the court is defendants’ request (doc. no. 128) that
plaintiff be ordered to pay their attorney’s fees, in the amount
of $992.00, associated with their successful litigation of a
motion for contempt, within 10 days.
the fee request.
Plaintiff has objected to
See Objection (doc. no. 130).
Also before the
court is a motion to strike (doc. no. 132) the objection.
Background
Plaintiff did not provide a complete, non-evasive answer to
defendants’ Interrogatory No. 16 when due, and defendants moved
to compel a complete answer, pursuant to Fed. R. Civ. P. 37(a).
The court granted that motion on April 2, 2012.
no. 93).
See Order (doc.
After the court compelled him to answer that
interrogatory, plaintiff responded by posing a different
question in lieu of the interrogatory drafted by defendants, and
then answering his own question.
Defendants moved for contempt,
and the court granted that motion in an order issued on July 16,
2012.
See Order (doc. no. 126).
In the July 16 order, the
court found plaintiff to be in contempt of the April 2012
discovery order and barred plaintiff from filing further motions
without the court’s leave until he answered Interrogatory No.
16.
As an additional sanction, the court awarded defendants
their reasonable expenses associated with the motion for
contempt, pursuant to Fed. R. Civ. P. 37(b)(2)(C).
See Order
(doc. no. 126).
Discussion
I.
Motion to Strike
Defendants contend that plaintiff’s objection (doc. no.
130) to their fee request should be stricken because it includes
requests for relief and allegedly misleads the court and the
public.
This court specifically granted plaintiff leave to file
a response to defendants’ statement of expenses.
(doc. no. 126).
See Order
This court need not strike the response and
alter the docket simply because the response includes arguments
and requests that the court is fully capable of considering or
rejecting.
Accordingly, the motion to strike (doc. no. 132) is
denied.
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II.
Expense Statement
A.
Attorney’s Fees
Defendants seek payment of their attorney’s fees, in the
amount of $992.00, based on the July 16 order (doc. no. 126).
“The proper method of awarding attorneys’ fees . . . is the
lodestar method, in which the court multiplies a reasonable
hourly rate by a reasonable number of hours expended.”
Med, Inc. v. Plant, 250 F.R.D. 28, 30 (D.R.I. 2008).
AstroPlaintiff
does not dispute the hourly rate ($160.00), and the court finds
that rate to be reasonable and commensurate with that awarded in
similar circumstances.
See, e.g., Saalfrank v. Town of Alton,
08-CV-46-JL, 2010 WL 839884, *11 (D.N.H. Mar. 5, 2010).
Plaintiff asserts that the fees claimed for counsel’s work
on matters other than the motion for contempt should not be
taxed to him, and asserts that further clarification of the
expense statement as to such combined billing is necessary.
The
court has reviewed the record, and finds that counsel’s
explanation for the hours at issue provides sufficient detail to
allow plaintiff to dispute the accuracy and reasonableness of
the time claimed for the tasks listed therein.
Courts may reduce by 50% the hours claimed, if the party
fails to provide a sufficiently detailed statement to allow the
opposing party to dispute the statement’s accuracy or to contest
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whether time spent was reasonable.
Martinez v. Hodgson, 265 F.
Supp. 2d 135, 141 (D. Mass. 2003).
Defendants’ counsel has
specifically acknowledged that three entries include time spent
on two closely-related motions, in addition to time spent on the
motion for contempt.
Those three entries amount to only one
hour of the total time at issue.
Counsel has proposed to reduce
the total time claimed by 0.6 hours, or 60% of the time
attributable to the three combined entries.
The court rejects
plaintiff’s request for further clarification and finds a
reduction of 0.6 hours to be reasonable.
Counsel further requests payment for time spent in
preparing the statement of expenses (0.7 hours).
The court
finds that amount of time to be reasonable and to have resulted
from plaintiff’s unjustified noncompliance with the discovery
order, see, e.g., Fed. R. Civ. P. 37(b) (if party fails to obey
discovery order, court must generally order payment of
reasonable expenses “caused by the failure”).
As such, the 0.7
hours is properly taxed as a sanction, pursuant to Fed. R. Civ.
P. 37(b)(2)(C).
Accordingly, plaintiff shall pay for 6.2 hours
of attorney-time, at $160.00 per hour, for a total of $992.00.
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B.
Payment Deadline
Defendants seek an order requiring plaintiff to pay their
fees within ten days.
In support of the short deadline,
defendants assert that an assessment of fees and costs has been
pending against plaintiff in state court since April 2012.
Plaintiff’s retort is that the state court issues are
irrelevant, that defendants should be sanctioned for raising
such issues, and that he should not be required to pay a
sanction “until all [his] appeal rights have been exhausted.”
He has further asserted that ordering him to pay $992.00 now
will limit the funds he has earmarked for taxes and/or the funds
“needed to put food on the table.”
As to plaintiff’s request that defendants be sanctioned,
the court finds that defendants have not unreasonably expanded
the scope of their expense statement by showing why they request
a short, secure deadline for the required payment.
Moreover,
plaintiff’s request for a sanction is not properly asserted in
an objection to a request for payment of fees, and will thus not
be considered by the court at this time.
See Fed. R. Civ. P.
7(b).
Plaintiff’s request for a stay of the sanction is similarly
improperly made in the objection rather than a motion showing
his entitlement to such relief.
See id.; see also Hatfill v.
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Mukasey, 539 F. Supp. 2d 96, 99 (D.D.C. 2008) (discussing
factors relevant to issuance of stay pending nonparty’s appeal
of contempt sanction).
Further, plaintiff has not demonstrated
that an interlocutory appeal is pending or permissible in these
circumstances.1
An order addressing whether to grant a stay
pending an appeal would therefore be premature.
Given plaintiff’s claim of financial hardship, which the
court accepts for purposes of this order (although it was
asserted without documentary support), the court finds that a
short deadline would not be appropriate.
Further, nothing in
the record gives the court reason to believe that providing
Bourne additional time to pay $992.00 would cause substantial
prejudice to defendants.
The court allows plaintiff 60 days
from the date of this order to pay the fees, without interest
accruing.
C.
Remaining Issues
The court has reviewed the remaining arguments in
plaintiff’s objection (doc. no. 130) and finds no reason to
reconsider its findings regarding plaintiff’s contempt, and no
1
The court declines to rule on whether the sanction or the
contempt order is immediately appealable. See U.S. Public
Interest Research Group v. Atlantic Salmon of Maine, LLC, 262 F.
Supp. 2d 1, 1 (D. Me. 2003) (party may not file interlocutory
appeal of civil contempt order (citing In re Licht & Semonoff,
796 F.2d 564, 568 (1st Cir. 1986)).
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other grounds in the record for rescinding or reducing the Rule
37(b)(2) fee award.
Conclusion
For the foregoing reasons, the court denies the motion to
strike (doc. no. 132).
The court directs plaintiff to pay
$992.00 to defendants’ counsel within 60 days of the date of
this order.
Failure to comply with this order may result in
further sanctions, including, but not limited to, a further
assessment of fees and costs.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
August 7, 2012
cc:
Samuel J. Bourne, pro se
Brian J.S. Cullen, Esq.
LBM:nmd
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