Griego et al v. Douglas et al
Filing
230
MEMORANDUM OPINION AND ORDER by Magistrate Judge Jerry H. Ritter granting in part 182 Motion for Attorney Fees (mlt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL GRIEGO, Personal Representative
of the Wrongful Death Estate of
ALEC J. JARAMILLO, Deceased,
ANDREW JARAMILLO and TERESA ROMO,
Plaintiffs,
v.
CV 17-0244 KBM/JHR
LABERTA M. DOUGLAS, Personal Representative
of the Estate of RUSSELL E. DOUGLAS, and
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion for Attorney Fees [Doc. 182],
filed April 19, 2019. Defendants filed a Response [Doc. 192] on May 3, 2019. Plaintiffs did not
file a Reply; therefore, briefing is complete. See D.N.M.LR-Civ. 7.1(b). Having considered the
positions of the parties and the evidence before the Court, Plaintiffs’ Motion for Fees will be
granted in part.
I.
BACKGROUND
This Court granted Plaintiff Michael Griego’s Motion to Compel Discovery Responses and
Request for Sanctions [Doc. 159] and denied Laberta M. Douglas’ Motion for Protective Order
[Doc. 162] on April 5, 2019. [See Doc. 171 (Order Granting Motion to Compel and Denying
Motion for Protective Order and Awarding Plaintiff Griego Reasonable Expenses)]. The Court
concluded that Griego’s Motion to Compel answers to his requests for admissions and
corresponding interrogatories was well-taken and that Laberta’s Motion, which took the opposite
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view of the issues, was not substantially justified. [Id., p. 13]. Accordingly, the Court authorized
Griego to file a motion seeking his costs and fees associated with litigating the Motion to Compel
and Motion for Protective Order. [Id.].
Plaintiffs filed the instant Motion pursuant to this Court’s April 5, 2019, Order. [See Doc.
182, p. 1]. In it, they recite the amounts of time spent by attorneys Brent Ferrel and Richard Sutten
to draft and edit Plaintiff’s Motion to Compel and their Response to Defendant’s Motion for a
Protective Order:
Brent Ferrel
2.2 hours
Richard Sutten
1.5 hours
[Id.]. They request attorneys’ fees in the amount of $1,340.10, with Mr. Ferrel charging a rate of
$300.00/hour and Mr. Sutten charging a rate of $395.00/hour. [Id.; Doc. 182-1, pp. 1-3]. Besides
the attorneys’ own affidavits (Mr. Ferrel has been practicing for almost 10 years and Mr. Sutten
has been practicing law for 22 years), Plaintiffs provide no evidence supporting these hourly rates.
[Id.].
Defendants seize upon this fact in their response, arguing that Plaintiffs failed to justify the
hourly rates they request, which are on the high-side for New Mexico personal injury attorneys.
[See Doc. 192, p. 2]. As such, “Defendants request that the Court reduce the amount of fees
Plaintiffs seek to a justifiably reasonable amount.” [Id.]. However, “Defendants do not dispute the
reasonableness of the time Plaintiffs’ counsel expended on the pleadings.” [Id.].
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
673, 680 (10th Cir. 2012) (quoting 1970 committee notes to Rule 37(a)(4)). As a consequence,
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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 or expenses would otherwise be
unjust. Id. at *5. “The Supreme Court has described the test of ‘substantially justified’ under Rule
37 as ‘a genuine dispute or if reasonable people could differ as to the appropriateness of the
contested action.’” Lester v. City of Lafayette, Colo., 639 F. App’x 538, 542 (10th Cir. 2016)
(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “To avoid an attorney-fee award, the
moving party must show that its motion had a ‘reasonable basis both in law and fact.’” Id. at 541.
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
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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). The party seeking 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). That 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).
III.
ANALYSIS
There is no dispute as to the number of hours Plaintiffs are requesting. [Doc. 192, p. 2].
However, Plaintiffs have failed to show that their attorneys’ requested hourly rates are reasonable
for this district. See Jane L., 61 F.3d at 1510 (“Hourly rates must reflect the prevailing market rates
in the relevant community.”) “New Mexico is a relatively poor state, with some of the lowest
hourly rates in the country.” XTO Energy, Inc. v. ATD, LLC, CIV 14-1021 JB/SCY, 2016 WL
1730171 at *32 (D.N.M. 2016) (Collecting cases and stating that “[a] $400.00 rate would be close
to the top, if not the top of the rates that the Court has approved or seen in New Mexico[.]”).
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. Case, 157 F.3d at 1257. The Court
notes that this personal injury case was not overly-complex, nor was the discovery dispute for
which Plaintiffs are recovering fees. Moreover, Plaintiffs failed to submit anything besides their
own attorneys’ affidavits in support of the hourly rates requested. Having reviewed local cases,
the Court determines that $250/hour is a reasonable hourly rate for Mr. Ferrel and $310/hour is a
reasonable hourly rate for Mr. Sutten. See, e.g., XTO Energy, Inc., 2016 WL 1730171 at *32
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(collecting cases); Payne v. TriState Careflight, 278 F.Supp.3d 1276, 1297 (D.N.M. 2017)
(awarding an hourly rate of $350/hour to a litigator with over 30 years of experience); Baity v.
Brad Hall & Associates, CV 18-0183 SCY/JHR, 2019 WL 2436262, at *2 (D.N.M. June 11, 2019)
(awarding a rate of $300/hour to a litigator with 16 years of experience); O Centro Espirita
Beneficente Uniao Do Vegetal in U.S. v. Duke, 343 F. Supp. 3d 1050, 1085 (D.N.M. 2018)
(awarding a rate of $350/hour to a litigator who demonstrated “unique” skills to the Albuquerque
area despite only having 11 years of experience and remarking that such a rate is ordinarily
reserved to lawyers with experience in the range of fifteen to twenty years); Griego v. United
States, CV 16-0475 JCH/SCY, 2018 WL 6727357, at *3 (D.N.M. Dec. 21, 2018) (awarding a rate
of $350/hour to a civil rights litigator with 17 years of experience).
IV.
LODESTAR CALCULATION
Given the above, the Court will award the following amount:
Attorney
Hours
Rate
Amount
Brent Ferrel
2.2
$250
$550.00
Richard Sutten
1.5
$310
$465.00
Total:
$1,015.00
Plus NM GRT (7.875%)
$79.93
Total:
V.
$1,094.93
CONCLUSION
The purpose of fee-shifting rules “is to protect and further legal rights by removing a
disincentive to vindicating those rights (namely, the cost of retaining attorneys to pursue the rights)
and creating a disincentive to violating them or failing to compensate victims for violations
(namely, the cost of paying for the victim’s attorneys).” Centennial Archaeology, Inc., 688 F.3d at
5
679 (citations omitted). However, “[i]t remains counsel’s burden to prove and establish the
reasonableness of each dollar, each hour, above zero.” Mares, 801 F. 2d at 1210. The Court finds
that Plaintiffs are entitled to their reasonable attorneys’ fees associated with litigating the Motion
to Compel and Motion for a Protective Order, but, for the reasons stated above, will reduce the
requested award because of Plaintiffs’ failure to support the hourly rates requested. As such,
Defendants shall pay Plaintiffs $1,094.93 within thirty (30) days of the entry of this Order.
IT IS SO ORDERED.
________________________
JERRY H. RITTER
U.S. MAGISTRATE JUDGE
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