Auge v. Stryker Corporation et al
MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar AWARDING Attorney's Fees to Plaintiff (am)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 14-cv-1089 KG/SMV
STRYKER CORPORATION and
HOWMEDICA OSTEONICS CORPORATION,
MEMORANDUM OPINION AND ORDER
AWARDING ATTORNEY’S FEES
Defendants filed a motion to compel. [Doc. 67]. I denied the motion. [Doc. 123].
Because I found that the motion was not substantially justified, I told the parties I would award
reasonable expenses under Rules 36(a)(6) and 37(a)(5). Id. at 2. Plaintiff filed a Declaration
listing the time his counsel had expended on the motion.
objections. [Doc. 134]. Plaintiff requested permission to file a reply to the objections. See
[Doc. 135]. I denied that request but allowed Plaintiff to file a supplemental declaration with
case law from the District of New Mexico addressing the issue of the reasonable hourly rate to
be applied. Id. Plaintiff filed a supplemental declaration. [Doc. 136]. Having considered the
parties’ submissions, and having reviewed other cases from this district involving the award of
attorney’s fees, I conclude that $350 is a reasonable hourly rate for Mr. Squires’ time; $150 is a
reasonable hourly rate for Mr. Wityak’s time; and $125 is a reasonable hourly rate for
Mr. Yobino’s time. I will reduce the amount of time requested because I find that it is excessive.
Mr. Coll was substituted as Plaintiff in this matter when the original Plaintiff, Wayne Augé, II, M.D., filed for
bankruptcy. Mr. Coll is the trustee of the bankruptcy estate. [Doc. 30].
THE LAW REGARDING ATTORNEY’S FEES
“To determine the reasonableness of a fee request, a court must begin by calculating the
so-called ‘lodestar amount’ of a fee, and a claimant is entitled to the presumption that this
lodestar amount reflects a ‘reasonable’ fee.” Robinson v. City of Edmond, 160 F.3d 1275,
1281 (10th Cir. 1998). The lodestar is “‘the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate,’ which produces a presumptively reasonable
fee that may in rare circumstances be adjusted to account for the presence of special
circumstances.” Anchondo v. Anderson, Crenshaw & Assoc., LLC, 616 F.3d 1098, 1102
(10th Cir. 2010) (quoting Hensley v. Ekerhart, 461 U.S. 424, 433 (1983), and Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 543–44 (2010)). “The party requesting attorney fees
bears the burden of proving” the two components used to calculate the fee award: (i) “the
amount of hours spent on the case;” and (ii) “the appropriate hourly rates.”
Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000). Once the
Court makes these two determinations, the fee “claimant is entitled to the presumption that this
lodestar amount reflects a ‘reasonable’ fee.” Robinson, 160 F.3d at 1281; see Malloy v.
Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The party entitled to fees must provide the
district court with sufficient information to evaluate prevailing market rates. See Lippoldt v.
Cole, 468 F.3d 1204, 1225 (10th Cir. 2006)). Moreover, the party must also demonstrate that
the rates are similar to rates for similar services by “lawyers of reasonably comparable skill,
experience, and reputation” in the relevant community and for similar work. Blum v. Stenson,
465 U.S. 886, 895 n.11 (1984); see Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255–
56 (10th Cir. 1998). Only if the district court does not have adequate evidence of prevailing
market rates for attorney’s fees, may it, “in its discretion, use other relevant factors, including
its own knowledge, to establish the rate.”
Case, 157 F.3d at 1257; see also United
Phosphorus, 205 F.3d at 1234 (A court abuses its discretion when its “decision makes no
reference to the evidence presented by either party on prevailing market rate[,]” and its rate
decision is based solely on the court’s “own familiarity with the relevant rates in this
Plaintiff requests $13,512.50 in attorney’s fees. [Doc. 127] at 2–4. The request includes
time expended by counsel, Jeffrey L. Squires; his associate, Ryan Wityak; and his paralegal,
Francisco Yobino. Id. The hours expended on the motion are broken down as follows.
Review motion to compel and discuss with A. Hankel
Discuss research needs with Ryan Wityak
Review case law research material and organize response
Begin drafting response to motion to compel
Draft portion of response
Draft and revise opposition to motion to compel
Draft and revise opposition to motion to compel
Final review and revisions to opposition to motion to compel
Prepare for hearing on motion
Attend hearing on motion
Draft fee application
Review and revise fee application; meet with Ryan Wityak
and Francisco Yobino
Id. at 3. Mr. Wityak’s time:
Research on Rule 36 and analyzing cases
Research on scope of Rule 36 and coverage of legal issues
Research on treatment of alternative theories of contract
Research on good faith in contesting answers to requests
Research on inclusion of fees for preparation of application
Id. at 4. Mr. Yobino’s time:
Attendance at hearing on RFA motion
Id. Plaintiff requests an hourly rate of $495 for Mr. Squires, $150 for Mr. Wityak, and $175 for
Mr. Yobino. Id. at 2–4.
A. The Time Expended on the Motion
Courts have an obligation to exclude hours not “reasonably expended” from the lodestar
calculation. Malloy, 73 F.3d at 1018. There are two elements to the reasonableness inquiry:
First, whether the attorney has exercised billing judgment and deleted excessive, unnecessary, or
redundant fees from his or her fee application, and second, whether the fee award is reasonable
in light of the success obtained. See Hensley, 461 U.S. at 434. The burden is on the party
requesting fees to demonstrate that the time expended was indeed reasonable. Case, 157 F.3d
at 1249. With respect to legal research performed, the party requesting fees must provide
enough information to determine whether the research was related to successful issues and
reasonably necessary. See id. at 1252. “An award of reasonable attorneys’ fees may include
compensation for work performed in preparing and presenting the fee application.” Id. at 1254
(quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir. 1986)).
As for the success obtained, Plaintiff won. Nothing more need be said on that point.
As for the reasonableness of the time expended, Defendants argue that the motion was
“just a discovery disagreement,” [Doc. 134] at 8, and that “a claim of $13,512.50 to respond to
[a] discovery Motion is unreasonable on its face,” id. at 9. To the extent Defendants argue that
this dispute was over-litigated, I agree.
Requests for Admission are not really all that
complicated. They are used to establish admission of facts over which there is no real dispute.
7 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 36.02 (Matthew Bender 3d ed.)
(“While the basic purpose of discovery is to elicit facts and information and to obtain production
of documents, Rule 36 was not designed for this purpose. Instead, requests for admission are
used to establish admission of facts about which there is no real dispute.”).
But that is not what Defendants were attempting to do with Request for Admission #2,
the request at issue. Defendants were trying to force Plaintiff to take a stand on one of his
alternative theories of liability. [Doc. 67] at 1–2 (“This motion is focused on one issue of urgent
concern—whether Plaintiff contends Defendants are in breach of the 2009 Royalty Agreement
between the parties. . . . After nearly two years of litigation, it is time for Plaintiff to take a
position.”) (emphasis omitted). Defendants were aware that Plaintiff had pleaded breach of the
2009 Royalty Agreement as an alternative theory of recovery (that is, his theory that he owned
the Improvements to Defendants’ products). See, e.g., Amended Complaint [Doc. 34] at 9 (“By
the actions alleged herein, Stryker and Howmedica breached their contractual obligations to
Dr. Augé by utilizing his proprietary designs, techniques[,] and enhancements, and then by
failing to either assign to him rights in, or to pay him compensation for product lines including
but not necessarily limited to those named Iconix, VersiTomic[,] and MicroFX, all in violation of
a series of agreements entered by the parties culminating in the July 21, 2009 Royalty
Agreement.”) (emphasis added); Plaintiff’s Response [to Motion to Compel] [Doc. 78] at 5–6
(“Defendants have long been aware that Dr. Augé’s claim under the Royalty Agreement
depended on whether he had been properly paid royalties under that agreement, and was also an
alternative theory of recovery, depending on the result of Defendants’ defensive contention that
they had “bought out” the rights to such Improvements by entering the Royalty Agreement—
although there was no provision to that effect in the Royalty Agreement.”); [Doc. 78-2]
(Correspondence dated 10/17/2016 from Plaintiff’s counsel to defense counsel discussing
alternative theories of recovery); [Doc. 67] at 8–9 (Plaintiff’s Answer to RFA #2: “In addition to
his initial response to this request for admission, Plaintiff is not able to admit or deny this request
because his ability to admit or deny the request is dependent upon the resolution of Plaintiff’s
claim that his damages in this case are the result of Defendants’ breach of a series of
Confidentiality Agreements. If, as Plaintiff states in his Interrogatory Answers, it were to be
determined—as Defendants have asserted—that Plaintiff’s claims and rights to damage are to be
calculated by application of the July 21, 2009 Assignment and Royalty Agreement, rather than
the series of Confidentiality Agreements, then Plaintiff would deny this requested admission. If
it were determined that Plaintiff is entitled to damages for the claimed unauthorized manufacture
and sale of products by Defendants in violation of the Confidentiality Agreements, culminating
in the August 16, 2007 Mutual Nondisclosure Agreement, and it w[ere] shown that defendants
have paid Dr. Aug[é] all royalties for the TwinLoopFlex products owed under the July 21, 2009
Assignment and Royalty Agreement, then Plaintiff would assert no claim for breach of that latter
agreement.”) (internal ellipsis and brackets omitted).
Thus, rather than using Rule 36 for its intended purpose—to identify facts over which
there is no dispute—Defendants were attempting to use it as a Rule 56 surrogate. Defendants
were trying to get Plaintiff to choose one of his alternative theories of recovery and abandon the
other. That is what turned a simple discovery dispute into a motion requiring 113 pages of
briefing and exhibits, [Docs. 67, 78, and 87], and an in-person hearing. I am therefore unmoved
by Defendants’ argument that it would be “fundamentally unfair to make Defendants pay
Plaintiff for Plaintiff’s attorneys to learn about alternative theories of contract breach.”
[Doc. 134] at 8 (internal quotation marks omitted).
Nevertheless, I agree with Defendants that the time expended on the briefing appears
excessive. Plaintiff asks me to award 17.4 hours of Mr. Squires’ time and 17.9 hours of
Mr. Wityak’s time for researching, drafting, and revising the Response to the Motion.
[Doc. 127] at 3–4. I have reviewed the Response in detail. Having done so, I conclude that the
time allowed for researching, drafting, and revising the Response should be reduced to 9.4 hours
of Mr. Squires’ time2 and 5.4 hours of Mr. Wityak’s time.3
I arrived at this number by reducing the drafting/revision time from 16 hours to 8 hours. [Doc. 127]. I find the
time spent reviewing the motion (1.0 hours) and discussing the motion with Mr. Wityak (0.4) to be reasonable.
I reduced the time for “research on Rule 36 and Analyzing cases” from 4.5 to 2.0 hours. I reduced “research on
scope of Rule 36 and coverage of legal issues” from 3.8 to 2.0 hours. I reduced “research on treatment of alternative
theories of contract breach” from 5.0 to 1.0 hour. I deleted the time for “research on good faith in contesting
answers to requests” because Plaintiff failed to establish that that research was necessary to prepare the Response.
I find that the rest of the time requested, including preparation for and attending the
hearing (2.3 hours of Mr. Squires’ time and 0.8 hours of Mr. Yobino’s time), and preparing the
fee application4 (1.8 hours of Mr. Squires’ time and 0.4 hours of Mr. Wityak’s time) is
reasonable and not excessive, redundant, or unnecessary. In making that determination, I have
considered the novelty and difficulty of the questions involved and the skill required to perform
the legal services properly.
B. The Reasonable Hourly Rate
“To determine what constitutes a reasonable rate, the district court considers the
prevailing market rate in the relevant community.” Lippoldt, 468 F.3d at 1224. “The rate must
reflect rates that are reasonable in light of: (i) the attorney’s level of experience; and (ii) the work
the attorney performed.” XTO Energy, Inc. v. ATD, LLC, No. 14-cv-1021 JB/SCY, 2016 WL
5376322, at *10 (D.N.M. Aug. 22, 2016). Defendants do not challenge the fee request based on
Plaintiff’s counsel’s level of experience. Mr. Squires’ Declaration adequately describes his level
of experience as well as that of his associate and paralegal. See [Doc. 127]. I accept that they
are well-qualified, have considerable experience in complex commercial litigation, and are
entitled to be compensated at the prevailing market rate.
The prevailing market rate is typically established through the affidavits of local
attorneys who practice in the same field as the attorneys seeking the fees. See, e.g., United
Phosphorus, 205 F.3d at 1232 (“In addition [to submitting an affidavit from the attorney
requesting fees], United submitted one affidavit from another attorney in Kansas City who
reviewed the rates, stating the rates were within the range of what attorneys with comparable
“An award of reasonable attorneys’ fees may include compensation for work performed in preparing and
presenting the fee application.” Mares, 801 F.2d at 1205.
skills and experience practicing trademark infringement law in the Kansas City area would
charge.”); XTO Energy, 2016 WL 5376322, at *5–7 (discussing affidavits submitted by attorneys
practicing similar legal work in New Mexico); Martinez ex rel. Est. of Martinez v. Salazar,
No. 14-cv-0534 KG/WPL, 2016 U.S. Dist. LEXIS 57269, at *2 (D.N.M. Apr. 28, 2016)
(“Plaintiff supported Coberly’s declaration with the resumes of Coberly and Chakeres as well as
with a declaration by Daniel Yohalem, a New Mexico attorney, who opined as to the prevailing
market rates for attorneys like Coberly and Chakeres.”). Neither party has submitted such
affidavits in this case. Mr. Squires’ Declaration states the hourly rates his firm charges for
similar work. See [Doc. 127] at 2. But that is not the issue. “The relevant market value . . . is
‘the price that is customarily paid in the community for services like those involved in the case at
hand.’” Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1203 (10th Cir. 1998) (quoting Beard v.
Teska, 31 F.3d 942, 956 (10th Cir. 1994)). Plaintiff has submitted no evidence on the prevailing
Likewise, Defendants have submitted no evidence of the prevailing market rate for patent
work. Defendants provided a list of cases “as related to the reasonableness of an attorney’s
hourly rate in the broader context of practicing law in the state of New Mexico.” [Doc. 134] at 5.
I found this table to be interesting and helpful in my analysis, but none of the cases cited in the
list involved patent litigation.
The closest case is XTO Energy, a 2016 case in which
Judge Browning held that $350 was a reasonable hourly rate for “high-end commercial work.”
[Doc. 134] at 5 (quoting XTO Energy, 2016 WL 5376322, at *13). In the XTO case, the parties
Plaintiff could argue that the amount counsel typically charges is indirect proof of the prevailing market rate.
There are two problems with that argument. First, counsel states only what he charges; nowhere in the declaration
does he say, “…and our clients pay what we charge.” Second, counsel may be able to charge his clients an
above-market rate based on his experience and track record.
had submitted opposing affidavits on the prevailing market rate from experienced attorneys
familiar with the prevailing market rate. Id. at 5–7. I find Judge Browning’s analysis of the
prevailing market rate to be persuasive.
Plaintiff could argue that Judge Browning was analyzing the market rate for “high-end
insurance work,” and that patent work justifies a higher hourly rate. While that may be true, I
have two responses.
First, Judge Browning’s conclusion comports with my own personal
knowledge of the prevailing market rate for complex commercial work in New Mexico. Second,
Plaintiff had the burden of proof on this issue. E.g., Blum, 465 U.S. at 895 n. 11; Ellis, 163 F.3d
at 1203. If the prevailing market rate for patent work is higher than $350/hour, Plaintiff could
have established that by submitting affidavits from other experienced attorneys familiar with the
prevailing rate. He did not do so, and I consider any such argument waived.
I find, therefore, that the evidence before the Court is inadequate to establish the
prevailing market rate for patent work in New Mexico, and I will employ own knowledge
(informed by Judge Browning’s excellent, in-depth analysis in XTO Energy) in concluding that
the appropriate hourly rates in this case are: $350 for Mr. Squires (lead counsel); $150 for
Mr. Wityak; and $125 for Mr. Yobino. Cf. Case, 157 F.3d at 1257 (court may not use its own
knowledge to establish the appropriate rate unless the evidence of prevailing market rates before
it is inadequate). In arriving at these conclusions I have taken into account that this is a fairly
complex case involving specialized legal knowledge.6 I will therefore award the following fees
pursuant to Fed. R. Civ. P. 36(a)(6) and 37(a)(5), see [Doc. 123]:
See Schueller v. Experian Info. Sols., Inc., No. 11-cv-0955 MCA/LFG, 2013 U.S. Dist. LEXIS 197742, at *24–25
(D.N.M. Mar. 27, 2013) (analyzing prevailing rates in New Mexico and concluding that $250/hour was a reasonable
rate for performing “unspecialized work in uncomplicated cases”).
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that $5,635 is
AWARDED to Plaintiff as reasonable expenses, pursuant to Fed. R. Civ. P. 36(a)(6) and
37(a)(5). See [Doc. 123]. Defendants must pay such expenses to Plaintiff no later than May 1,
2017. However, if Defendants timely object to this order, the order will be stayed pending
resolution of the objections.
IT IS SO ORDERED.
STEPHAN M. VIDMAR
United States Magistrate Judge
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