Environmental Dimensions, Inc. v. EnergySolutions Government Group, Inc.
Filing
102
MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter granting in part and denying in part 79 Motion Attorney Fees. Plaintiff shall pay Defendant $3,920.00 within thirty (30) days of the entry of this order. (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ENVIRONMENTAL DIMENSIONS, INC.,
A New Mexico Corporation,
Plaintiff,
v.
CIV 16-1056 WJ/JHR
ENERGYSOLUTIONS GOVERNMENT
GROUP, INC. (n/k/a Atkins Energy
Government Group, Inc.), a foreign for
profit corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant Atkins Energy’s Motion for Attorney
Fees Associated with Filing Motion to Compel [Doc. 79], filed July 12, 2018. Plaintiff EDi filed
a Response [Doc. 82], and Defendant filed a Reply [Doc. 84]. Having considered the parties’
positions and all relevant authority, the Court will grant Defendant’s Motion in part.
I)
BACKGROUND
Defendant filed its Motion to Compel Discovery Responses to Requests for Production
Nos. 10, 15, 18, 19, and 20 on March 15, 2018. [See generally Doc. 56]. Plaintiff did not respond
to the Motion to Compel, but instead supplemented its discovery responses – twice. [See Docs. 63,
65]. Defendant filed a Reply in support of the Motion to Compel on April 11, 2018, explaining
that Plaintiff’s responses remained deficient. [See generally Doc. 67]. The Court, accordingly,
granted Defendant’s Motion to Compel on June 28, 2018. [See Doc. 74].
Having granted Defendant’s Motion, the Court invited it to move for costs and fees
associated therewith. [Id., p. 2]. Defendant filed the instant Motion as instructed, supported by the
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affidavit of Robert J. Sutphin, Defendant’s local counsel. [See generally Docs. 79, 79-1]. In the
Motion, Defendant requests a total of $9,3663.00 in attorney fees. [Doc. 79, p. 2].
Plaintiff argues that the fees sought are excessive, and that “the supporting affidavit is
insufficient to show the fees are reasonable.” [Doc. 82, p. 1]. Specifically, Plaintiff argues that the
hourly rates sought - $450.00 per hour for attorney James Barnett and $240.00 per hour for attorney
Elizabeth Rudolf - are excessive for this district. [Id., p. 2]. Additionally, Plaintiff argues that
Defendant’s requested hours - 30.1 for both attorneys - demonstrates duplicative billing practices.
Plaintiff asks the Court to evaluate both the requested hours and hourly rates for reasonableness.
[Id., p. 1]. Plaintiff also takes issue with certain specific hours requested by Defendant, such as the
allegedly 7.9 hours spent coordinating regarding the motion to compel, 5.3 hours spent revising
the reply brief (yet only 2 hours drafting it), and duplicative entries for drafting the initial Motion.
In its Reply, Defendant argues that its attorneys’ time was not duplicative, and supports its
time entry for revising the reply brief by arguing that “there is no substantiated reason why finetuning and revisions of a brief cannot exceed the initial drafting.” [Doc. 84, p. 2]. As to the time
spent coordinating, Defendant explains that this time was spent “coordinating regarding the meet
and confer, reply brief, strategy for both the original motion and its reply, discovery issues, filing,
supplemental production, and communications with the client team.” [Id.]. More to the point,
Defendant argues that “[h]ad EDi complied with Atkins Energy’s original requests and met its
discovery obligations, a majority of this time would not have been spent.” [Id.]. Finally, Defendant
argues in support of its proposed hourly rates. [Id., pp. 2-3].
II)
LEGAL STANDARDS
“The rules should deter the abuse implicit in carrying or forcing a discovery dispute to
court when no genuine dispute exists.” Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d
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673, 680 (10th Cir. 2012) (quoting 1970 committee notes to Rule 37(a)(4)). As a consequence,
Federal Rule of Civil Procedure 37 contains provisions that “allow, and often require” the Court
to award attorney fees for discovery misconduct. Id. at 678. Under Rule 37(a)(5)(A),
[i]f the motion is granted – or if the disclosure or requested discovery is provided
after the motion was filed – the court must, after giving an opportunity to be heard,
require the party or deponent whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the movant’s reasonable expenses
incurred in making the motion, including attorney’s fees. But the court must not
order this payment if . . . (ii) the opposing party’s nondisclosure, response or
objection was substantially justified; or (iii) other circumstances make an award of
expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). In other words, “[t]he great operative principle of
Rule 37(a)(5) is that the loser pays,” In re Lamey, 2015 WL 6666244 at *4 (D.N.M. 2015) (quoting
Wright, Miller & Marcus, Federal Practice and Procedure (3d ed. 2010), § 2288, n.17), unless
the failure to respond was substantially justified or an award of expenses would otherwise be
unjust. Id. at *5.
In the event that the Court determines that fees must be awarded, the burden shifts to the
applicant to “prove and establish the reasonableness of each dollar, each hour, above zero.” Jane
L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995) (citation omitted); see Diaz v. Metzgar, 2014
WL 12782782 at *7 (D.N.M. 2014) (“The fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours expended and hourly rates.”)
(quoting Mares v. Credit Bureau of Raton, 801 F. 2d 1197, 1201 (10th Cir. 1986)). The Court will
then reach a “lodestar figure,” which is the product of reasonable hours expended times a
reasonable hourly rate. See Mares, 801 F. 2d at 1201. “The setting of a reasonable hourly rate is
within the district court’s discretion…. [and] [h]ourly rates must reflect the prevailing market rates
in the relevant community.” Jane L., 61 F.3d at 1510 (citation omitted).
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An applicant lawyer must keep “meticulous time records that reveal all hours for which
compensation is requested and how those hours were allotted to specific tasks.” Id. (citation
omitted); Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1252 (10th
Cir. 1998) (“Counsel for the party claiming the fees has the burden of proving hours to the district
court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for
whom fees are sought, all hours for which compensation is requested and how those hours were
allotted to specific tasks.”). This concept is particularly apt “where a party is seeking to have his
opponent pay for his own lawyer’s work.” Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th
Cir. 1998). As such, a lawyer’s billing statement should “include the specific amounts of time
allocated to each individual task.” Id. “Where the documentation of hours is inadequate, the district
court may reduce the award accordingly.” Jane L., 61 F.3d at 1510 (citation omitted); see Case,
157 F.3d at 1252 (declining to award fees where the party failed to establish that an attorney’s
work was reasonably necessary to their case and because her billing statements were “not clear.”).
“A general reduction of hours claimed in order to achieve what the court determines to be
a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.”
Mares, 801 F. 2d at 1203 (citations omitted); Case, 157 F.3d at 1252. As examples, the Mares
court pointed to cases in which the Supreme Court reduced hours to account for a lawyer’s lack of
experience, for a failure to keep contemporaneous time records, and for unreasonable,
unproductive or excessive time. Mares, 801 F. 2d at 1203 (citations omitted).
Additionally, once the Court has adequate time records before it, it must then ensure that
the winning attorneys have exercised “billing judgment,” which “consists of winnowing the hours
actually expended down to the hours reasonably expended.” Case, 157 F.3d at 1250. As the
Supreme Court has stated, “[h]ours that are not properly billed to one’s client also are not properly
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billed to one’s adversary[.]” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quoted authority
omitted) (emphasis in original); see also Mares, 801 F. 2d at 1204 (fee awards “were not designed
as a form of economic relief to improve the financial lot of attorneys, nor were they intended to
replicate exactly the fee an attorney could earn through a private fee arrangement with his client.”)
(quoted authority omitted). Thus, it is not proper to bill for every hour logged where adjustments
may be made for lack of experience or conducting general research. See Mares, 801 F. 2d at 1204
(citations omitted). A “district court may also reduce the reasonable hours awarded if ‘the number
of compensable hours claimed by counsel includes hours that were unnecessary, irrelevant and
duplicative.’” Case, 157 F.3d at 1250 (quoting Carter v. Sedgwick County, Kan., 36 F.3d 952, 956
(10th Cir. 1994)).
III)
ANALYSIS
Plaintiff does not argue that its conduct was substantially justified or that other
circumstances render a fee award unjust in these circumstances. Accordingly, the Court will
proceed to analyze the reasonableness of the hourly rate and specific hours at issue.
Beginning with the hourly rates, the Court finds that Mr. Barnett’s requested hourly rate of
$450.00 per hour will be reduced to $350.00 per hour and Ms. Rudolf’s hourly rate will be reduced
from $240.00 per hour to $220.00 per hour.
“To determine what constitutes a reasonable rate, the district court considers the
prevailing market rate in the relevant community.” … “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.” …. “In general, the ‘relevant community’ is ‘the
area in which the court sits....’” The court looks first “to the parties' evidence of the
prevailing market rate,” which is “typically established through the affidavits of
local attorneys who practice in the same field as the attorneys seeking the fees.” “If
the court lacks adequate evidence to determine the prevailing market rate, it may
use other factors, including its own knowledge, to establish the rate.”
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Schueller v. Wells Fargo & Co., CIV 16-0107 MV/KBM, 2018 WL 2943245, at *3 (D.N.M. June
12, 2018) (internal citations omitted). Ms. Rudolf’s rate is reduced primarily because Defendant
has failed to offer any substantive reason why she should be paid more than a “comparable”
associate in its New Mexico office. [See Doc. 79-1, p. 3]. Mr. Barnett’s rate, on the other hand, is
reduced due to its size relative to similar awards in this district. While Defendant provides an
affidavit of a local attorney, Mr. Sutphin, in support of the hourly rate requested, it cites no case
in which this Court has awarded fees at $450.00 per hour. In fact, the only commercial case that
the Court is aware of in which a $350.00 per hour hourly rate was approved continues to be XTO
Energy, Inc. v. ATD, LLC, CIV 14-1021 JB/SCY, 2016 WL 1730171, at *32 (D.N.M. Apr. 1,
2016), in which Judge Browning observed that “[a] $400.00 rate is a considerable amount for any
commercial litigation in New Mexico.” Id. Defendant argues that XTO Energy was decided two
years ago, prompting the increase it requests. However, this Court’s survey of fee awards in recent
local decisions involving complex commercial cases does not support such an increase. See, e.g.,
Schueller, 2018 WL 2943245, at *5 (collecting cases); Fallen v. GREP Sw., LLC, 247 F. Supp. 3d
1165, 1198 (D.N.M. 2017) (awarding $375.00 per hour in a consumer protection case that was
“likely headed toward a class action[.]”). Accordingly, the Court finds that Mr. Barnett shall be
entitled to a rate of $350.00 per hour. With these rates in mind, the Court turns to the hours
expended by Defendant.
As noted, Defendant requests a total of 30.1 hours of attorney time, 10.2 hours for Mr.
Barnett and 19.9 hours for Ms. Rudolf. However, the Court finds several instances of the time
billed to be duplicative. Specifically, the Court agrees with Plaintiff’s contention that attorney time
spent coordinating regarding the motion to compel was unnecessary. The Court will accordingly
subtract 5.9 hours from the total time requested by Mr. Barnett, to reduce his total requested hours
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to 4.3. Likewise, the Court will reduce the time spent by Defendant’s attorneys working on the
reply brief. As mentioned, Plaintiff did not file a response to Defendant’s Motion to Compel; thus,
there was little need for a reply brief other than to catalog remaining deficiencies in the
supplemental discovery responses. Under the circumstances, the Court finds that the time spent on
the reply brief was excessive. Ms. Rudolf reports 11.9 hours drafting and revising the reply brief
and Mr. Barnett reports 3.9 hours working on and revising the brief, for a total of 15.8 hours of
attorney time. The Court will disallow half of the hours requested for working on the reply brief,
thereby subtracting approximately 1.9 hours from Mr. Barnett and 5.9 from Ms. Rudolf.
What remains is a total of 2.4 hours for Mr. Barnett and 14 hours for Ms. Rudolf, or a total
of 16.4 out of the total 30.1 hours they request. Given these amounts, and the rates determined
above, the Court will award the following:
Attorney
Rate
Amount
James Barnett
2.4
$350
$840.00
Elizabeth Rudolf
14
$220
$3,080.00
Total:
IV)
Hours
$3,920.00
CONCLUSION
The Court understands Defendant’s frustration with Plaintiff’s failure to cooperate in the
discovery process, and to that end, believes that a fee award is warranted. However, Defendant has
failed to meet its burden of establishing the reasonableness of the hourly rates and hours expended
by its attorneys. Plaintiff did not file a response to the underlying motion to compel, thereby
conceding the relief requested and limiting the necessary scope of a reply brief. As such,
Defendant’s Motion for Fees is granted in part and denied in part. Plaintiff shall pay Defendant
$3,920.00 within thirty (30) days of the entry of this order.
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IT IS SO ORDERED.
________________________
JERRY H. RITTER
U.S. MAGISTRATE JUDGE
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