Moulton v. Bane et al

Filing 119

ORDER granting in part and denying in part 83 Motion for Sanctions; granting in part and denying in part 112 Motion for Sanctions. Motions are granted to the extent that plaintiff is awarded reasonable attorneys fees in the amount of $1,620.00. The motions are otherwise denied. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas M. Moulton
v.

Civil No. 14-cv-265-JD
Opinion No. 2015 DNH 220

David Bane and
Prime Choice Enterprises, LLC
O R D E R
Moulton previously moved for sanctions, arguing that David
Bane had not complied with the court’s order to produce
documents responsive to requests 20, 21, and 22 in his first set
of requests for production of documents.

In response, Bane

argued that the delay in providing discovery was caused by
disruption in his counsel’s practice due to the sudden departure
of the lawyer who had been primarily responsible for the case
and that any failure to comply with the order was not willful.
The court ordered Bane to provide, by the stated dates, all
documents responsive to requests 20, 21, and 22, and a
certification that all responsive documents had been produced.
The court also allowed Moulton to file a supplemental motion for
sanctions.
Discussion
Moulton has now filed a supplemental motion for sanctions.
He acknowledges that the ordered discovery and the certification

have been provided.

Nevertheless, Moulton seeks as sanctions

default judgment in his favor on all claims or alternatively
that the court declare that certain facts are established in the
case.

Moulton also requests an award of his attorney’s fees

incurred in filing the motions for sanctions.
In response, Bane reiterates that the discovery delays were
not willful but instead were caused by the difficulties his
counsel encountered due to the departure of the lawyer who was
handling the case.

Bane further states that his failure to

produce complete responses to requests 20, 21, and 22 in a
timely manner was due to his misunderstanding of the scope of
the requests.

Once the requests were properly explained by

counsel, Bane produced the responsive documents.
Bane argues that the sanctions of default and establishing
certain facts are not appropriate in the circumstances that
occurred here.

He does not respond to Moulton’s request for

attorney’s fees.
A.

Sanctions
As explained in more detail in the court’s previous order

issued on November 10, 2015 (document no. 101), the sanction of
default, or establishing facts that would result in judgment
against the opposing party, is reserved for severe discovery
violations.

AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429,
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436 (1st Cir. 2015).

Even in those cases, the decision of

whether to enter default depends on all of the circumstances
that pertain to the discovery violation.

Hooper-Haas v. Ziegler

Holdings, LLC, 690 F.3d 34, 38 (1st Cir. 2012).
In this case, Bane has now provided the requested
discovery.

Moulton has not shown any prejudice caused by the

delay other than the additional expenses incurred in forcing
Bane to comply with the discovery requests.

Under the

circumstances presented here, the severe sanctions of default
and establishing facts that would result in judgment against
Bane and PCE are not appropriate.
B.

Attorneys’ Fees
When a party fails to obey a discovery order, the court

must order that party to pay the attorneys’ fees incurred
because of the failure to comply “unless the failure was
substantially justified or other circumstances make an award of
expenses unjust.”

Fed. R. Civ. P. 37(b)(2)(C).

The party

facing sanctions bears the burden of showing substantial
justification or other circumstances that would make an award
unjust.

See Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 178

(2d Cir. 2008); Metrocorps, Inc. v. E. Mass. Drum & Bugle Corps
Ass’n, 912 F.2d 1, 2 (1st Cir. 1990).

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As Bane did not address

Moulton’s request for attorney’s fees, he apparently does not
oppose that part of the motion.
Reasonable fees for purposes of an award of expenses under
Rule 37 are generally calculated using the lodestar method.
See, e.g., Providence Piers, LLC v. SMM New England, Inc., 2015
WL 4459143, at *6 (D.R.I. July 20, 2015); Walker v. Segway Inc.,
2013 WL 3754864, at *2 (D.N.H. July 15, 2013).

Under the

lodestar method, the court multiplies the hours productively
spent by a reasonable hourly rate.

Torres-Rivera v. O’Neill-

Cancel, 524 F.3d 331, 336 (1st Cir. 2008).

The party seeking

fees must provide sufficient documentation to support the hours
claimed and the rate requested.

Id.

Moulton asks for an award of $1,620.00 in attorneys’ fees.
In support, he provides the declaration of counsel who states
that her usual hourly rate is $310 per hour although she is
charging Moulton $270 per hour in this case.

Counsel also

appended a time and expense report to show the time spent on the
motion and the supplemental motion for sanctions.
For purposes of awarding fees in a prior order, the court
found that counsel’s hourly rate of $270 is reasonable in this
case.

See Order, November 24, 2015, doc. no. 114, at 13-14.

The time and expense report shows that counsel spent a total of
six hours preparing the two motions.

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The lodestar calculation

results in a fee of $1,620.00, as Moulton requests.

Bane does

not object to that amount.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
sanctions (document no. 83) and supplemental motion for
sanctions (document no. 112) are granted to the extent that
plaintiff is awarded reasonable attorneys’ fees in the amount of
$1,620.00.

The motions are otherwise denied.

SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
December 2, 2015
cc:

Anna B. Hantz, Esq.
Michele E. Kenney, Esq.
Deborah Ann Notinger, Esq.
William B. Pribis, Esq.
Ross H. Schmierer, Esq.
Nathan P. Warecki, Esq.

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