City of Las Cruces et al v. United States of America et al
Filing
454
ORDER TO PAY ATTORNEY'S FEES AND COSTS re 304 Order Granting in Part and Denying in Part Plaintiffs' Motion to Compel and for Sanctions and 308 Plaintiffs' Fee Affidavit by Magistrate Judge Gregory B. Wormuth. (ceo)
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 1 of 51
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CITY OF LAS CRUCES and
DOÑA ANA COUNTY,
Plaintiffs,
v.
Civ. No. 17-809 JCH/GBW
UNITED STATES OF AMERICA, et al.,
Defendants.
ORDER DIRECTING DEFENDANT AMERICAN LINEN SUPPLY OF NEW
MEXICO, INC. TO PAY ATTORNEY’S FEES AND COSTS
THIS MATTER comes before the Court on the Affidavit of Jessica K. Ferrell in
Response to Court Order Granting in Part and Denying in Part Plaintiffs’ Motion to
Compel and for Sanctions (doc. 308). Having reviewed the Affidavit, its attached
exhibits, and Defendant American Linen Supply of New Mexico, Inc.’s (“American
Linen) objections (doc. 316), and being fully advised in the premises, the Court
AWARDS Plaintiffs $79,491.41 in attorney’s fees and costs for American Linen’s failure
to prepare an adequately prepared Rule 30(b)(6) designee, failure to timely supplement
its disclosures and discovery responses, and substantially unjustified opposition to
Plaintiffs’ Motion to Compel and for Sanctions.
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 2 of 51
I.
BACKGROUND
On February 1, 2021, the Court sanctioned American Linen “for producing an
inadequately prepared Rule 30(b)(6) designee and failing to supplement its initial
disclosures and discovery responses in a timely manner.” Doc. 304 at 65. It directed
Plaintiffs to submit an affidavit detailing the reasonable expenses and fees that they
incurred to (i) depose American Linen’s inadequately prepared Rule 30(b)(6) designee
on April 1, 2019; (ii) investigate American Linen’s dry-cleaning operations and use of
perchloroethylene (“PCE”) from March 30, 2019, to October 5, 2020; and (iii) file their
motion to compel and for sanctions (doc. 263). Id. at 66.
On February 8, 2021, Plaintiffs timely filed an affidavit of expenses and fees. Doc.
308. They claim expenses and fees totaling $228,135.46 broken down as follows: (i)
$30,899.33 in fees and expenses for the Rule 30(b)(6) deposition ($27,918.00 in fees and
$2,981.33 in expenses); (ii) $129,746.89 in fees and expenses for investigating American
Linen’s dry-cleaning and PCE use ($123,780.89 in fees and $5,966.00 in expenses); and
(iii) $67,489.24 in fees to bring their motion to compel and for sanctions. See generally
doc. 308-2. On February 16, 2021, American Linen filed objections to Plaintiffs’ affidavit
and the Court’s sanctions order. Docs. 315, 316. On May 11, 2021, the Honorable Judith
C. Herrera overruled these objections. Doc. 348.
2
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II.
LEGAL STANDARD
“A reasonable attorney’s fee is reasonable compensation, in light of all the
circumstances, for the time and effort expended by the attorney for the party, no more
and no less.” Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673, 679 (10th Cir.
2012) (quoting Blanchard v. Bergeron, 489 U.S. 87, 93 (1989)) (cleaned up). “’[R]easonable’
does not necessarily mean actual expenses.” Thomas v. Capital Sec. Servs., Inc., 836 F.2d
866, 879 (5th Cir. 1988). Rather, to determine reasonable attorneys’ fees, the Court
“must arrive at a ‘lodestar’ figure by multiplying the hours plaintiffs’ counsel
reasonably spent on the litigation by a reasonable hourly rate.” Jane L. v. Bangerter, 61
F.3d 1505, 1509 (10th Cir. 1995).
III.
ANALYSIS
American Linen raises three types of objections to Plaintiffs’ claimed expenses
and fees: (i) the fees and expenses are unreasonable, see doc. 316 at 10-17; (ii) its
misconduct is not a but-for cause of all claimed fees and expenses, see id. at 4-10; and
(iii) the total fees and expenses sought is disproportional to its failure to supplement its
initial disclosures and discovery responses in a timely manner, see id. at 3. The first two
objections have merit and prompt the Court to reduce the claimed fees and expenses to
a reasonable sum for tasks caused by the sanctioned conduct. To the extent that the
third objection contests something other than the reasonableness of Plaintiffs’ claimed
costs, the Court finds it unconvincing.
3
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A. REASONABLENESS OF CLAIMED EXPENSES AND ATTORNEYS’ FEES
Only $$79,491.41 of the claimed $228,135.46 in attorneys’ fees and expenses is
reasonable. Plaintiffs’ claimed sum is a product of rates that exceed local rates without
justification, excess hours on tasks necessitated by American Linen’s misconduct, hours
spent on tasks not necessitated by this conduct, and expenses that are not reimbursable
in full or in part.
1. Reasonableness of Plaintiffs’ Claimed Attorney Rates
Based on the evidence before the Court, Plaintiffs have failed to establish that the
hourly rates claimed for their attorneys and paralegals are reasonable. “The
establishment of hourly rates in awarding attorneys’ fees is within the discretion of the
trial judge who is familiar with the case and the prevailing rates in the area.” Lucero v.
City of Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987).1 The rate “should reflect rates in
effect at the time the fee is being established by the court, rather than those in effect at
the time the services were performed.” Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.
1983). “Unless the subject of the litigation is so unusual or requires such special skills
that only an out-of-state attorney possesses, the fee rates of the local area should be
applied even when the lawyers seeking fees are from another area.” Lippoldt v. Cole, 468
Lucero and many of the cases to which the Court cites in this award assess the reasonableness of
attorney’s fees claimed pursuant to 42 U.S.C. § 1988. The Tenth Circuit has held that this caselaw is
applicable to attorney’s fees and expenses awarded pursuant to Federal Rule of Civil Procedure 37. See
Centennial Archeology, 688 F.3d at 680.
1
4
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F.3d 1204, 1225 (10th Cir. 2006) (internal quotation marks and citations omitted). These
rates are what “lawyers of reasonably comparable skill, experience, and reputation in
the relevant community,” id. at 1224-25, “practicing in the area in which the litigation
occurs would charge for their time,” Ramos, 713 F.2d at 555.
Presently, the Court sees no reason to depart from New Mexico rates in this case.
CERCLA litigation is specialized and complex. See Pakootas v. Teck Cominco Metals, Ltd.,
No. CV-04-256 LRS, 2009 WL 10671390, at *2 (E.D. Wash. Dec. 21, 2009); Rhodes v. Cnty.
of Darlington, 833 F. Supp. 1163, 1174 (D.S.C. 1992). But the prevailing local rate for
CERCLA representation captures this specialization and complexity. Plaintiffs’ sole
arguments for departing from this rate are conclusory statements about “the complex
and specialized nature of this case” and passing references to the small size of the New
Mexican legal market. See doc. 308 at ¶ 10. These conclusory statements are insufficient
to establish that this CERCLA case is more complicated than the usual CERCLA case.
Cf. Pakootas, 2009 WL 10671390, at *2 (departing from the prevailing market rate for a
CERCLA case that posed a novel question of the statute’s applicability to the activities
of a foreign corporation). Passing reference to the number of attorneys in New Mexico
does not establish that the local bar cannot provide Plaintiffs with representation
commensurate to that which they are receiving from out-of-market counsel. The local
bar may be small, but it has several firms practicing CERCLA litigation. See doc. 316 at
13 n.7. The Court has no evidence that these firms are incapable of replicating the
5
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representation that Plaintiffs are receiving from their chosen counsel.2 Cf. Reazin v. Blue
Cross & Blue Shield, Inc., 899 F.2d 951, 983 & n.49 (10 Cir. 1990) (affirming a district
court’s departure from the prevailing market right where the local market could not
replicate the expertise, experience, and resources of an out-of-market law firm).
Plaintiffs, as the fee applicants, bear the burden to produce evidence—in
addition to their attorney’s own affidavit—that their requested rates align with the local
market rate for CERCLA litigation by comparable counsel. See Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984). “Evidence ‘is typically established through the affidavits of local
attorneys who practice in the same field as the attorneys seeking the fees.’” Strobel v.
Rusch, No. CIV 18-0656 RB/JFR, 2021 WL 371575, at *2 (D.N.M. Feb. 3, 2021) (quoting
Mosaic Potash Carlsbad, Inc. v. Lintrepid Potash, Inc., No. 16-CV-0808 KG/SMV, 2018 WL
2994412, at *3 (D.N.M. June 14, 2018)). “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.’” Mosaic,
2018 WL 2994412, at *1 (quoting Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1257
(10th Cir. 1998), and citing United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d
1219, 1234 (10th Cir. 2000)).
2
Plaintiffs, of course, are free to retain whatever counsel they wish to represent them before the Court.
Their freedom to pay out-of-market rates for representation, though, does not require the Court to award
fees at those rates.
6
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The evidence before the Court about the prevailing market rates for CERCLA
litigation in New Mexico is inadequate. By Plaintiffs’ own admission, they have
produced no evidence about the local market rate for CERCLA litigation by comparable
counsel. See doc. 308 at ¶ 7. The only evidence in the record about this rate comes from
American Linen. In a declaration, Jeffrey J. Wechsler, American Linen’s counsel,
recounts the rates that his firm is charging American Linen in this case and asserts that
“[i]t is [his] understanding that these rates are commensurate for litigation with those
charged by other New Mexico attorneys with similar levels of experience and expertise
in the practice of environmental law….” See Doc. 316-3 at ¶¶ 2-6. Self-serving affidavits
like this one, though, lack sufficient evidentiary weight to preclude consideration of
other indicia for the local market rate. See Stone v. Deagle, Civil Action No. 05-cv-01438RPM-CBS, 2007 WL 4150298, at *2 (D. Colo. Nov. 19, 2007) (considering caselaw to
determine a reasonable hourly rate when the only evidence offered by the parties was
self-serving affidavits); cf. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 556 (7th Cir.
1999) (“An attorney’s self-serving affidavit alone cannot satisfy the plaintiff’s burden of
establishing the market rate for that attorney’s services.”).
Considering the complexity of this case, Mr. Wechsler’s affidavit, the Court’s
own knowledge, and other indicia of the New Mexico rate for CERCLA litigation—
particularly recent caselaw about the hourly rates for commercial and complex
7
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litigation in New Mexico—the Court finds that the following are reasonable hourly
rates for the attorneys and paralegals retained by Plaintiffs:
$400/hour for Bradley Marten, a managing partner who is nationally recognized
as a top environmental lawyer, has more thirty-five years of environmental law
experience, and clerked for the U.S. District Court for the Western District of
Washington. See doc. 316-3 at ¶¶ 3, 5 (asserting $250/hour for a senior counsel with
forty-five years of experience and national recognition as a “leading attorney in the area
of environmental law” was commensurate with the local rate); cf. Strobel v. Rusch¸ No.
CIV 18-0656 RB/JFR, 2021 WL 371575, at *2–3 (D.N.M. Feb. 3, 2021) (awarding $400/hour
for an “of counsel” attorney with nearly fifty years of experience in a trademark and
copyright case that “was neither high-end nor complex”); Daniel & Max, LLC v. BAB
Holding Co., Civ. No. 19-173 GJF/GBW, 2019 WL 3936865, at *2 (D.N.M. Aug. 20, 2019)
(awarding $450/hour in a breach of contract case for an attorney who had clerked on the
U.S. Supreme Court and had “over thirty years of complex federal experience as a
shareholder of a major New Mexico law firm”); Fallen v. GREP Sw., LLC, 247 F. Supp. 3d
1165, 1198 (D.N.M. 2017) (finding four years ago that a rate of $375/hour approached
the “upper end” of the market for “a very experienced partner engaged in complex,
multi-party commercial litigation”).
$390/hour for J. Trey Phillips, a partner with more than thirty years of experience
in complex litigation, six of which were as First Assistant Attorney General for the State
8
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of Louisiana. See doc. 316-3 at ¶¶ 3, 5 (asserting $250/hour for a senior counsel with
forty-five years of experience and national recognition as a “leading attorney in the area
of environmental law” was commensurate with the local rate); cf. Strobel, 2021 WL
371575, at *2–3 (awarding $400/hour for an “of counsel” attorney with nearly fifty years
of experience in a trademark and copyright case that “was neither high-end nor
complex”); Fallen, 247 F. Supp. 3d at 1198 (finding four years ago that a rate of
$375/hour approached the upper end of the market for a very experienced partner
engaged in complex, multi-party commercial litigation).
$380/hour for Stephen Odell, a partner with twenty-five years of environmental
litigation experience who handled many of Oregon’s consequential environmental
disputes as an Assistant U.S. Attorney for the District of Oregon for almost twenty years
and clerked for both the Ninth Circuit Court of Appeals and the U.S. District Court for
the District of Oregon. See doc. 316-3 at ¶¶ 3, 5 (asserting $250/hour for a senior counsel
with forty-five years of experience and national recognition as a “leading attorney in the
area of environmental law” was commensurate with the local rate); cf. Got Prods. LLC v.
Zepto LLC, No. CIV 18-0893 RB/LF, 2020 WL 1288568, at *3 (D.N.M. Mar. 18, 2020)
(awarding $375/hour for a founding partner with more than twenty years of
commercial litigation experience in a breach of contract case that was not high end or
complex); Fallen, 247 F. Supp. 3d at 1198 (finding four years ago that a rate of $375/hour
9
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approached the upper end of the market for a very experienced partner engaged in
complex, multi-party commercial litigation).
$360/hour for Jessica Ferrell, a partner with national recognition and fifteen years
of experience in CERCLA and other environmental litigation. See doc. 316-3 at ¶¶ 2, 5
(asserting that $250/hour for a shareholder with nineteen years of experience and
national recognition as a “leading attorney in the area of environmental law” was
commensurate with the local rate); cf. Auge v. Stryker Corp., No. 14-cv-1089 KG/SMV,
2017 WL 4355974, at *4 (D.N.M. Sept. 28, 2017) (awarding $350/hour for a partner
experienced in patent litigation four years ago); XTO Energy, Inc. v. ATD, LLC, No. CIV
14-1021 JB/SCY, 2016 WL 5376322, at *1, *10, *14 (D.N.M. Aug. 22, 2016) (awarding
$350/hour to a partner with thirteen years of experience and national recognition as a
top insurance lawyer in a high-end insurance case five years ago).
$225/hour for Jennifer Hammitt, a senior associate with ten years of experience,
seven of which were at the Environmental Protection Agency’s Office of General
Counsel. See doc. 316-3 at ¶¶ 3, 5 (asserting that $175/hour for a sixth-year associate
with experience in environmental and natural resource law was commensurate with the
local rate); cf. XTO Energy, 2016 WL 5376322, at *1, *10, *14 (D.N.M. Aug. 22, 2016)
(awarding $200/hour five years ago to a sixth-year associate in a high-end insurance
case); Daniel & Max, 2019 WL 3936865, at *2 (D.N.M. Aug. 20, 2019) (awarding
$190/hour in a breach of contract case to an associate of unknown experience).
10
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$190/hour for Dave Medeiros, a local contract attorney with thirty-four years of
experience (half of which was as in-house counsel for Plaintiffs as a local government
attorney) who was retained for his unique expertise and familiarity with the case and
has not entered an appearance. See Lippoldt, 468 F.3d at 1225 (holding that a district
court did not abuse its discretion by considering the extent of local counsel’s
responsibility when identifying that counsel’s rate); doc. 316-3 at ¶¶ 3, 5 (asserting that
$250/hour for a special counsel with forty-five years of experience and national
recognition as a “leading attorney in the area of environmental law” was commensurate
with the local rate).
$175/hour for Sarah Wightman, an associate with at least two of years of
experience, and $150/hour for Jack Ross, a first-year associate. See doc. 316-3 at ¶¶ 3, 5
(asserting that $175/hour for a sixth-year associate with experience in environmental
and natural resource law was commensurate with the local rate); cf. Strobel, 2021 WL
371575, at *2–3 (awarding $150/hour for a first-year associate in trademark and
copyright case that “was neither high-end nor complex”); Got Prods., 2020 WL 1288568,
at *2-3 (awarding $175/hour for a second-year associate in a breach of contract case that
was not high end or complex).
$90/hour for experienced CERCLA paralegals like David Baker and Marina
Goodrich. See doc. 316-3 at ¶ 6 (asserting that 60/hour for paralegals experienced in
environmental litigation, including those with more than twenty years of experience, is
11
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commensurate with the local rate); cf. Got Prods., 2020 WL 1288568, at *3 (awarding
$85/hour to paralegals in a breach of contract case that was not high end or complex);
Payne v. Tri-State Careflight, LLC, No. CIV-14-1044 JB/KBM, 2016 WL 5376321, at *13
(D.N.M. Aug. 16, 2016) (finding that $90/hour was a reasonable rate for paralegal
services in a wage and hour dispute).
2. Reasonableness of Plaintiffs’ Claimed Attorney Hours
Turning to the issue of reasonable hours, many of the hours claimed by Plaintiffs
for tasks related to the Rule 30(b)(6) deposition, the investigation of American Linen’s
dry-cleaning operations and PCE use from March 30, 2019, to October 5, 2020, and their
Motion to Compel and for Sanctions are unreasonable. “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.” Case, 157 F.3d at 1250. The Court must then scrutinize such records to
“ensure that the … attorneys have exercised ‘billing judgment’” by “winnowing the
hours actually expended down to the hours reasonably expended.” Id. (quoting Ramos,
713 F.2d at 553); see also Ramos, 713 F.2d at 553 (“It does not follow that the amount of
time actually expended is the amount of time reasonably expended.”).
The Court assesses reasonableness based on the following factors: (i) whether the
task would normally be billed to a paying client; (ii) the amount of time spent on a
12
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given task; (iii) the complexity of the task; (iv) the number of reasonable strategies
pursued; (v) the responses necessitated by maneuvering of the other side; and (vi)
duplication. See Case, 157 F.3d at 1250. The Court, though, need not “identify and
justify each disallowed hour” or “announce what hours are permitted for each legal
task.” Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1202 (10th Cir. 1986). Instead, the
Court may impose “[a] general reduction of hours claimed in order to achieve what the
court determines to be a reasonable number” so long as it provides sufficient reason for
doing so. Id; see also id. (affirming a district court’s percent reduction of hours to
account for the excessive time an inexperienced counsel spent preparing the case); Jane
L., 61 F.3d at 1510 (affirming a district court’s percent reduction of hours to account for
the failure of “sloppy and imprecise time records … to document adequately how
plaintiffs’ attorneys utilized large blocks of time”); Carter v. Sedgwick Cnty., 36 F.3d 952,
956 (10th Cir. 1994) (affirming a district court’s percent reduction of hours to eliminate
“hours that were unnecessary, irrelevant and duplicative”).
Here, Plaintiffs have generally provided detailed summaries of tasks their
attorneys and paralegals completed, broken down by month, timekeeper, and hours
expended measured in six-minute increments. See doc. 308 at ¶ 31; see generally doc. 3082. Their hours claimed for each task reflect billing judgment. See doc. 308 at ¶ 31
(explaining that the hours claimed for reflect “contemporaneously recorded individual
billing entr[ies]”); see generally doc. 308-2 (citing to an invoice number for all hours
13
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claimed except for those spent preparing the affidavit and exhibits in February 2020).
For hours spent on tasks related to multiple defendants, Plaintiffs have reduced the
billed time claimed proportionately. See doc. 308 at ¶ 31 n.11. The Court’s task,
therefore, is to “look at the hours expended on each task to determine if they are
reasonable” and reduce hours claimed in excess of “what the court determines to be a
reasonable number.” See Case, 157 F.3d at 1250.
i.
RULE 30(B)(6) DEPOSITION
The Court reduces the time awarded for noticing and preparing for American
Linen’s Rule 30(b)(6) deposition. For a deposition lasting just over four hours, Plaintiffs
claim a total of 76.55 hours: (i) 13.65 hours by Ms. Ferrell, Ms. Hammitt, and Ms.
Wightman drafting, revising, and serving the notice for the deposition; (ii) 3.6 hours by
Ms. Ferrell and Ms. Hammitt meeting and conferring about that notice; (iii) 19.5 hours
by Ms. Ferrell, Ms. Hammitt, and Mr. Baker drafting and revising an outline for the
deposition; (iv) 11.2 hours by Mr. Baker gathering and preparing materials and exhibits
for the deposition; (v) 1.1 hours by Ms. Ferrell and Ms. Hammitt reviewing materials
and conferring with experts about the deposition; (vi) 9.8 hours by Ms. Ferrell and Ms.
Hammitt on other unspecified preparation; (vii) 10.3 hours by Ms. Ferrell and Mr.
Medeiros driving to and attending the deposition, and (viii) 7.4 hours by Ms. Ferrell,
Ms. Hammitt, Ms. Whitman, and Mr. Medeiros reviewing the deposition’s transcript
14
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and corresponding with American Linen about its designee’s inadequate preparation.3
See doc. 308-2 at 2-7, 35.
The 13.65 hours claimed by Plaintiffs’ attorneys for noticing the Rule 30(b)(6)
deposition is excessive. CERCLA litigation may be complex and generate substantial
quantities of documentation and discovery that require review. But identifying Rule
30(b)(6) deposition topics is not a uniquely complicated matter. The lack of complexity
is particularly true here where, except for inquiring as to the factual basis for three of
American Linen’s prior statements, the ten topics noticed are general inquiries about the
company’s corporate history; employee training; historical dry-cleaning activities,
equipment, and suppliers; and other matters relevant to CERCLA owner/operator
claims. See doc. 243-1 at 8-12. To eliminate excessive time, the Court reduces the
number of hours claimed for each attorney to notice the deposition by fifty percent.
Similarly, the time claimed by Plaintiffs’ attorneys and paralegals to outline,
gather materials for, and otherwise prepare for the Rule 30(b)(6) deposition is also
excessive. To eliminate unreasonable time claimed for outlining and gathering
deposition materials and account for the lack of detail provided for other unspecified,
additional preparation, the Court reduces the number of hours claimed for outlining,
As part of the calculation of this total, the Court considers time that Ms. Hammitt spent corresponding
with American Linen about the Rule 30(b)(6) deposition on June 3, 2019, see doc. 308-2 at 7, as responsive
to the Rule 30(b)(6) deposition, rather than to the investigation of American Linen’s PCE use and drycleaning history.
3
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creating background documents and exhibits, and other unspecified preparation by one
third. Cf. Lintz v. Am. Gen. Fin., Inc., 87 F. Supp.2d 1161, 1168 (D. Kan. 2000) (holding
that 44.7 hours was an excessive amount of time to spend preparing for and taking the
deposition of a party’s corporate representative and reducing the amount of time award
to 16.7 hours).
Time claimed by Ms. Ferrell to travel to Las Cruces, New Mexico for the
deposition is recoverable and reasonable. In Ramos, the Tenth Circuit held that where
“there is no need to employ counsel from outside the area … travel expenses for [out-ofarea] counsel between their offices and the city in which the litigation is conducted
should [not] be reimbursed.” 713 F.2d at 559. Courts in this Circuit apply Ramos to bar
the award of “travel-related hours billed by out-of-state counsel” to travel to the state of
litigation. See, e.g., Utah Physicians for a Healthy Env’t, Inc. v. Diesel Power Gear, LLC, Case
No. 2:17-cv-00032-RJS, 2021 WL 254268, at *20-21 (D. Utah Jan. 26, 2021).4 The Court,
though, does not modify the hours claimed for Ms. Ferrell’s air travel to El Paso, Texas
for this deposition because she spent the flight preparing to take the deposition. See doc.
308-2 at 3. (Though, per above, the Court does reduce the time claimed for this
preparation by thirty-three percent due to its lack of specificity. See supra at 14-15.).
Nor does the Court reduce the number of hours claimed by Ms. Ferrell to travel from El
By contrast, time traveling within New Mexico is reimbursable at an attorney’s full reasonable rate, see
Ysasi v. Brown, No. CIV 13-0183 JB/CG, 2015 WL 403930, at *19 (D.N.M. Jan. 7, 2015), even for out-ofmarket counsel, see Utah Physicians, 2021 WL 254268, at *21.
4
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Paso to Las Cruces to take the deposition from 6.1 to 4.2 hours (the number of hours
claimed by Mr. Medeiros to attend the deposition telephonically). A state line divides
El Paso and Las Cruces, but their geographic proximity—just over fifty miles—makes
them a single legal market for many types of litigation. The Court finds that the better
reading of Ramos is a prohibition against awarding fees and expenses incurred solely
because the prevailing party hired an out-of-market (rather than out-of-state) counsel.
See Ramos, 713 F.2d at 559 (referring to out-of-area counsel, rather than out-of-state
counsel).
The remaining hours claimed for work on the Rule 30(b)(6) deposition are
reasonable. Claiming hours for both Ms. Ferrell’s and Mr. Medeiros’ attendance at the
deposition is appropriate. See Ysasi v. Brown, No. CIV 13-0183 JB/CG, 2015 WL 403930,
at *19, *29 (D.N.M. Jan. 7, 2015) (finding that having three attorneys present for a
deposition was reasonable). Having multiple attorneys and paralegals work on a single
task is not unreasonably duplicative. See United States ex rel. Baker v. Cmty. Health Sys.,
Inc., Civ. No. 05-279 WJ/ACT, 2013 WL 10914086, at *15 (D.N.M. Aug. 9, 2013) (“The
repeating of certain tasks performed by multiple attorneys … is a reflection of the
layered and progressive process inherent in legal representation….”). Given the
complexities of the case and the size of the administrative and case record about the
Site, the Court considers proper the time claimed for corresponding about, negotiating,
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and revising the scope of the deposition, reviewing discovery materials, and conferring
with experts.
Based on the above, the Court awards Plaintiffs $14,822.13 in attorneys’ fees
arising from American Linen’s failure to produce an adequately prepared Rule 30(b)(6)
designee, broken down as follows:
Attorney
or
Paralegal
Ms.
Ferrell
Ms.
Hammitt
Mr.
Mederios
Ms.
Wightman
Mr. Baker
Totals
Hours Awarded
Review
Materials
Exhibit
and
Other
Prep.
Confer
Prep.
with
Experts
Noticing
PreDepo
Meet
and
Confer
$360.00
2.5500
3.400
5.0667
0.0000
0.7000
6.1333
6.1000
2.3000
26.2500
$9,450.00
$225.00
3.5500
0.200
6.8667
0.0000
0.4000
0.4000
0.000
4.3000
15.7167
$3,536.25
$190.00
0.0000
0.0000
0.000
0.0000
0.0000
0.0000
4.2000
0.2000
4.4000
$836.00
$160.00
$60.00
0.7250
0.000
6.8250
0.000
0.000
3.6000
0.000
1.0667
13.0000
0.0000
7.4467
7.4467
0.0000
0.0000
1.1000
0.0000
0.0000
6.5333
0.0000
0.0000
10.3000
0.6000
0.00
7.4000
1.3250
8.5333
56.2250
$231.88
$768.00
$14,822.13
Hourly
Rate
ii.
Outline
Attendance
PostDepo
Meet
and
Confer
Total
Fee
Award
DRY CLEANING AND PCE INVESTIGATION
The Court also reduces the time claimed for investigating American Linen’s PCE
use and dry-cleaning activities. For an eighteen-month investigation, Plaintiffs claim a
total of 336.1401 hours: (i) 130.35 hours by Mr. Marten, Mr. Phillips, Ms. Ferrell, Ms.
Hammitt, Ms. Wightman, Mr. Baker, and Ms. Goodrich to identify, locate, correspond
with, and interview former American Linen employees and other fact witnesses; (ii)
18
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74.15 hours by Ms. Ferrell, Ms. Hammitt, Mr. Medeiros, Ms. Wightman, Mr. Ross, Mr.
Baker, and Ms. Goodrich to search for and obtain documentary evidence of American
Linen’s dry-cleaning operations and PCE use, including public records requests to the
New Mexico Environment Department (“NMED”), the Environmental Protection
Agency, and the New Mexico Regulatory Commission; researching and subpoenaing
dry-cleaning manuals and other documents from manufacturers and suppliers;
searching the New Mexico State University (“NMSU”) Branson Library and the Las
Cruces Thomas Branigan Memorial Library for relevant documents; and
communicating with experts about these documents; (iii) 45.799 hours by Mr. Marten,
Ms. Ferrell, Ms. Hammitt, Mr. Medeiros, Ms. Wightman, Mr. Ross, and Mr. Baker
preparing for and taking Raymundo Castillo’s deposition and exploring deposing
Casper Lutz; (iv) 49.325 hours by Mr. Marten, Ms. Ferrell, Ms. Hammitt, Ms. Wightman,
Mr. Ross, and Mr. Baker researching, preparing, and propounding a second set of
written discovery requests on American Linen; (v) 10.2071 hours by Mr. Marten, Ms.
Ferrell, Ms. Hammitt, Ms. Wightman, and Mr. Baker drafting and revising memoranda,
timelines, and investigation budgets; (vi) 5.925 hours by Mr. Marten, Ms. Ferrell, Ms.
Hammitt, Ms. Wightman, and Mr. Baker coordinating the investigation in general; (vii)
8.05 hours by Ms. Ferrell, Ms. Hammitt, and Mr. Baker researching American Linen’s
assets and insurance coverage; (viii) 10.384 hours by Mr. Marten, Ms. Ferrell, Ms.
Hammitt, and Mr. Baker doing other tasks that are unrelated to the investigation or lack
19
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the specificity for the Court to assess their relation to the investigation; and (ix) 1.95
hours by Mr. Marten, Ms. Hammitt, and Mr. Baker investigating the arranger claim.
Not all of these hours, though, arise from American Linen’s failure to supplement its
disclosures and discovery responses.
a. American Linen’s Failure to Supplement is Not the “But-for”
Cause of Every Claimed Hour
Plaintiffs have not shown that American Linen’s failure to supplement its
disclosures and discovery responses in a timely manner is the but-for cause of each
hour claimed for investigation American Linen’s historical operations and PCE use. In
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), the Supreme Court held that
“the court can shift only those attorney’s fees incurred because of the misconduct at
issue” when sanctioning that misconduct under the Federal Rules of Civil Procedure.
137 S Ct. at 1186 & n.5; see also id. at 1187 (“The [sanctioning] court's fundamental job is
to determine whether a given legal fee …would or would not have been incurred in the
absence of the sanctioned conduct. The award is then the sum total of the fees that,
except for the misbehavior, would not have accrued.”). The Supreme Court cautioned,
though, that trial courts “need not, and indeed should not, become green-eyeshade
accountants” when determining the causal relationship between sanctioned conduct
and a claimed legal fee. See id. at 1187. “The essential goal in shifting fees is to do
rough justice, not to achieve auditing perfection,” so “a district court may take into
20
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 21 of 51
account its overall sense of a suit [and] decide … that all (or a set percentage) of a
particular category of expenses … were incurred solely because of a litigant’s bad-faith
conduct.” Id. (internal quotation marks and brackets omitted).
Here, not every attorney fee claimed by Plaintiffs resulting from its investigation
of American Linen’s PCE use and dry-cleaning operations is a product of American
Linen’s failure to supplement its blanket denials of dry-cleaning operations and PCE
use within a reasonable time of Larry Hartman’s deposition. Even if American Linen
had admitted to conducting dry cleaning with PCE at its facilities (as it eventually did
in October 2020 in its responses to Plaintiffs’ requests for admission, see doc. 264-5 at 78), Plaintiffs still would have had to investigate the disposal and spillage of PCE at these
facilities as part of establishing the causation element of their owner/operator claim.
Based on the Court’s sense of the suit, this hypothetical investigation would have
entailed identifying and interviewing additional fact witness, albeit on a smaller scale
than the investigation Plaintiffs pursued. Therefore, the Court finds that American
Linen’s failure to supplement caused Plaintiffs to incur only fifty percent of the fees that
they claim for identifying, interviewing, and deposing fact witnesses, coordinating their
investigation of American Linen, and drafting and revising memoranda, timelines, and
budgets related to this investigation.
By contrast, though, the Court finds that American Linen’s failure to supplement
is a but-for cause of most of the investigation that Plaintiffs pursued to obtain
21
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 22 of 51
documents evincing that American Linen conducted dry-cleaning using PCE. The
purpose of researching dry-cleaning equipment manufacturers, subpoenaing
documents from these entities, and conducting archival research at the NMSU Branson
Library and the Las Cruces Thomas Branigan Memorial Library was to obtain
documents supporting the proposition that American Linen conducted dry-cleaning
using PCE and overcome American Linen’s insistence to the contrary. See, e.g., doc. 20013 at 1, 4 (an account payment authorization from the Las Cruces Urban Renewal
Agency stating that American Linen possessed dry-cleaning equipment and drums of
PCE in 1972). Therefore, these tasks would not have been necessary had American
Linen retracted its blanket denials of dry-cleaning operations and PCE use after
receiving reasonable notice that they were incorrect. Therefore, the Court finds that
American Linen’s failure to supplement is the but-for cause of the hours spent by
Plaintiffs’ attorneys spent on these tasks.
As for public records requests, Plaintiffs pursued them to “uncover hazardous
waste or regulatory investigations related to American Linen.” See doc. 263 at 4 n.8.
Since such investigations are relevant to not only whether American Linen conducted
dry-cleaning operations using PCE but also to whether these operations caused
contamination, the Court finds that Plaintiffs would have pursued some of these public
records requests even if American Linen had timely supplemented its disclosures and
discovery responses about its historical operations. Therefore, the Court finds that
22
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 23 of 51
American Linen’s failure to supplement caused Plaintiffs to incur fifty percent of the
fees they claim for time their attorneys spent on public records requests.
Similarly, the Court finds that some, but not most, of the fees arising from the
additional written discovery propounded upon American Linen are attributable to the
company’s failure to supplement. Approximately one quarter of the discovery requests
served on American Linen on September 3, 2020, see doc. 234, seek information about the
company’s dry-cleaning activities and PCE use, see doc. 264-5 at 7-8. The other
discovery requests seek admissions about employment relationships between American
Linen and various fact witnesses, investigations of American Linen by government
agencies, the release of PCE at American Linen’s facilities, and information and
documentation relevant to collecting a judgment against American Linen. See id. at 311. Therefore, the Court finds that American Linen’s failure to supplement is a but-for
cause of twenty-five percent of the fees arising from the additional written discovery.
Finally, the Courts finds that American Linen’s failure to supplement is not the
but-for cause of hours claimed for investigating American Linen’s assets, insurance, or
liability as an arranger, or tasks of unclear relation5 to the American Linen investigation.
Tasks of unclear relation to the American Linen investigation are the following: (i) time spent by Mr.
Marten reviewing a redacted document about the American Linen claim on February 14, 2020, reviewing
materials about American Linen for a call with a redacted individual on March 7, 2020, calling a redacted
individual on March 9, 2020, unspecified research into American Linen on March 24, 2020, and calling
Mr. Baker on March 24, 2020, to assign unspecified research into American Linen; (ii) time spent by Ms.
Ferrell doing unspecified work on the liability case against American Linen on October 30, 2019; (iii) time
claimed by Mr. Baker to review and catalog unspecified documents production on April 2, 2019, to
support an unspecified deposition and expert report on April 3, 2019, and research information for
5
23
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 24 of 51
Plaintiffs would have investigated American Linen’s assets, insurance, and arranger
liability regardless of whether American Linen had timely supplemented its blanket
denials of PCE use and dry-cleaning operations. The tasks of unclear relation to the
American Linen lack the specificity required for the Court to assess their relationship to
American Linen’s failure to supplement. Therefore, the Court awards no fees for hours
claimed on these activities.
b. The Remaining Claimed Hours are Reasonable
Turning to the reasonableness of the hours claimed for tasks caused by American
Linen’s failure to supplement, the Court finds that, after the time spent on tasks is
reduced to account for causation, the amount of time spent by Plaintiffs on each task
arising from its investigation of American Linen’s PCE use and dry-cleaning operations
investigating is reasonable. Neither of the two arguments that American Linen makes
otherwise is convincing.
First, American Linen contends that investigations pursued by Plaintiffs after
having a telephone call with Raymundo Castillo on April 1, 2019, were unreasonable. It
insists that Plaintiffs must have learned from this call that Mr. Castillo would testify
supplemental expert reports on August 3, 2020; and (iv) time claimed by Ms. Hammitt to have calls with
the case team and clients about defensive discovery, Rule 30(b)(6) depositions, and expert reports on
April 2, 2019, review materials about American Linen on April 3, 2019, discuss redacted content and
American Linen discovery on November 8, 2019, work on redacted informal interviews on March 20,
2020, check in with the City of Las Cruces about City documents related to redacted matters about
American Linen on April 30, 2021, and respond to a request about American Linen’s discovery history
and dates of receipt on September 16, 2021.
24
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 25 of 51
that American Linen had conducted dry-cleaning with PCE, testimony that
“definitively demonstrated that American Linen conducted dry-cleaning at the 525
North Church Street location during the years that Mr. Castillo was employed there.”
See doc. 316 at 7. Hindsight may be twenty-twenty, but-foresight is not. At the time,
Plaintiffs had no way of knowing that Mr. Castillo’s eventual testimony would prompt
American Linen to change its position on its historical dry-cleaning operations and PCE
use. After all, American Linen had not changed its position after similar testimony
from Victor Jasso and Mr. Hartman. So long as American Linen continued to deny ever
conducting dry-cleaning operations and ever using PCE, Plaintiffs bore the burden of
proof and persuasion on these facts. Therefore, it was reasonable for Plaintiffs to
continue to look for more evidence to establish them.
Second, American Linen argues that Plaintiffs may not recover fees incurred after
their interview with Mr. Castillo on April 1, 2019, since they did not timely supplement
their initial disclosures to indicate that he had information related to their claims, and
waited sixteen months to take Mr. Castillo’s deposition. See id. American Linen insists
that “if Plaintiffs had disclosed the information that they obtained from Mr. Castillo to
American Linen, American Linen would have considered it and supplemented much
sooner.” Id. The Court disagrees. Mr. Castillo’s deposition was not unduly delayed
given that this case was stayed from August 21, 2019, through July 17, 2020, see doc. 189;
25
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 26 of 51
doc. 214 at 2, and the deposition ocurred approximately one month after the end of the
stay, see doc. 233-12 at 1.
The Court is unpersuaded that American Linen would have supplemented its
disclosures and discovery responses to retract its blanket denials of PCE use and drycleaning operations if Plaintiffs had supplemented their disclosures to include Mr.
Castillo as a witness. As the Court has already noted, see doc. 304 at 33, 58, passivity
defined American Linen’s discovery conduct through August 2020. It took no
depositions, served no discovery requests, pursued no internal investigation of its
historical operations beyond reviewing its corporate records, and “supplemented” its
position about its PCE use and dry-cleaning operations not by amending its disclosures
and discovery responses, but rather by retracting its blanket denials in responses to
requests for admission. It also denied having any obligation to answer discovery
requests based on information known by former employees whom it could contact and
interview with reasonable effort. See doc. 279 at 7-8. Given American Linen’s behavior
and position on the extent of corporate knowledge, the Court finds that, even if
Plaintiffs had supplemented their disclosures to include Mr. Castillo early in their
investigation, the mere inclusion of Mr. Castillo as a potential fact witness would not
have prompted American Linen to reevaluate its positions about its dry-cleaning
activities and PCE use. Any failure by Plaintiffs to disclose Mr. Castillo as a witness
within a reasonable time of discovering the content of his testimony does not bar them
26
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 27 of 51
from recovering the reasonable expenses of their investigation of American Linen’s
operational history after April 1, 2019.
Having concluded that the hours are reasonable, the Court awards Plaintiffs
$37,741.28 in attorneys’ fees arising from the American Linen’s failure to supplement,
broken down as follows:
Hours Awarded
Witness and Document
Investigation
Attorney
or
Paralegal
Hourly
Rate
Coordination
Deps.
Written
Discovery
Client
Memos,
&
Budgets
Total
Fee
Award
Witness
Mr.
Marten
Mr.
Phillips
Ms. Ferrell
Ms.
Hammitt
Mr.
Medeiros
Ms.
Wightman
Mr. Ross
Mr. Baker
Ms.
Goodrich
Totals
Public
Records
Requests
Archive,
Equip.
& Other
Doc.
Search
$400.00
0.1500
0.0000
0.0000
0.1875
0.2500
0.3250
0.1250
1.0375
$415.00
$390.00
$360.00
21.0875
12.2375
0.0000
2.9375
0.0000
7.9750
0.0000
0.2875
0.0000
7.0250
0.0000
3.5625
0.0000
0.4125
21.0875
34.4375
$8,224.13
$12,397.50
$225.00
7.5475
1.0000
11.6500
1.1375
2.4995
1.5750
0.9411
26.3506
$5,928.88
$190.00
0.0000
0.0000
0.3000
0.0000
0.7500
0.0000
0.0000
1.0500
$199.50
$175.00
$150.00
$90.00
7.7650
0.0000
6.6500
0.0000
0.4000
2.7500
10.4500
0.0000
23.3000
0.3250
0.0000
1.0250
4.3000
0.6000
7.4750
1.8188
2.8750
2.1750
0.0750
0.0000
3.5500
24.7338
3.8750
46.9250
$4,328.41
$581.25
$4,223.25
$90.00
9.7375
65.1750
0.0000
7.0875
6.3000
59.9750
0.0000
2.9625
0.0000
22.8995
0.0000
12.3313
0.0000
5.1036
16.0375
175.5343
$1,443.38
$37,741.28
27
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 28 of 51
iii.
MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS
Some of the time that Plaintiffs’ counsel claims to bring their Motion to Compel
Discovery and for Sanctions (doc. 263) is unreasonable. Plaintiffs’ attorneys claim a total
of 95.892 hours, broken down as follows: (i) 6.095 hours by Mr. Marten, Ms. Ferrell, and
Ms. Hammitt corresponding, meeting, and conferring with American Linen about the
discovery dispute; (ii) 7.364 hours by Ms. Ferrell, Mr. Ross, and Mr. Baker reviewing
American Linen’s discovery responses and disclosures, Plaintiffs’ investigations into
American Linen’s PCE use, and compiling internal documents about them; (iii) 31.833
hours by Mr. Marten, Ms. Ferrell, Ms. Hammitt, Mr. Mederios, Mr. Ross, and Mr. Baker
researching, writing, and revising the Motion to Compel Discovery and for Sanctions;
(iv) 3.6 hours by Mr. Mederios and Mr. Baker preparing five exhibits totaling forty-nine
pages for the motion; (v) 33.7 hours by Mr. Marten, Mr. Odell, Ms. Ferrell, Mr.
Mederios, and Mr. Ross researching, writing, and revising the reply brief; (vi) 5.7 hours
by Mr. Baker excerpting 10 pages of American Linen’s deposition transcript as an
exhibit for the reply; (vii) 1.75 hours by Mr. Baker preparing binders about the motion
for hearings; and (viii) 5.85 hours communicating by Ms. Ferrell with Plaintiffs about
the briefing.
The Court does not compensate Plaintiffs for 1.75 hours that a paralegal spent
preparing binders for a motions hearing or the 6.095 hours that their attorneys spent
meeting and conferring with American Linen about discovery deficiencies. The Court
28
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did not set or hold a hearing on Plaintiffs’ Motion, so all hours spend preparing for a
hearing were unreasonable.
As for time claimed for the meet and confer process, this Court and its sister
courts have split over whether such time is recoverable as expenses awarded pursuant
to Rule 37(a)(5). Compare Miller v. Paschall Truck Lines, LLC, Civ. 20-303 GBW/SCY, 2021
WL 919868, at *2 (D.N.M. Mar. 10, 2021) (not awarding expenses incurred meeting,
conferring, and corresponding with opposing party about a discovery dispute), and
VanMeter v. Briggs, CV 18-0970 RB/JHR, 2020 WL 954771, at *3 (D.N.M. Feb. 27, 2020)
(same), and Lifetime Prods., Inc. v. Russell Brands, LLC, Case No. 1:12-cv-00026-DN-EJF,
2016 WL 5349728, at *2 (D. Utah Sept. 23, 2016) (gathering cases for the proposition that
courts do not award fees or expenses arising from the meet and confer process), with
Pistone v. N.M. Pub. Def. Dep’t, No. 13-cv-0920 MV/SMV, 2015 WL 13666991, at *2
(D.N.M. Feb. 25, 2015) (awarding expenses arising from the meet and confer process),
and DCD Partners, LLC v. Transamerica Life Ins. Co., Case No. 2:15-cv-03238-CAS (GJSx),
2018 WL 6252450, at *3 (C.D. Cal. June 13, 2018) (same). The Tenth Circuit has stated
that Rule 37(a)(5) only includes “reasonable expenses incurred … in filing or opposing a
discovery motion.” Centennial Archaeology, 688 F.3d at 678 (emphasis added). The most
natural reading of that phrase excludes reimbursement for meeting and conferring
before drafting a discovery motion. See VanMeter, 2020 WL 954771, at *3. Barring bad
29
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 30 of 51
faith by the losing party at the meet-and-confer,6 this Court will adopt such a reading.
Thus, it finds that expenses arising from Plaintiffs’ attorneys meeting and conferring
with American Linen—which preceded their drafting of the Motion to Compel and for
Sanctions—are not expenses incurred in the making of that Motion and so does not
award them for the 6.095 hours that their attorneys spent doing so.
The Court awards some of the 7.364 hours that Plaintiffs claim for their attorneys
and paralegals American Linen’s reviewing discovery responses and disclosures and
compiling documents about them. This Court and many of its sister courts have read
the phrase “reasonable expenses incurred in making the motion” in Rule 37(a)(5) to
exclude expenses incurred reviewing discovery responses and disclosures to assess
their adequacy. See, e.g., Miller, 2021 WL 919868, at *2; Maese v. Lamey (In re Lamey), No.
14-13729 ta7, Adv. No. 15-1030 t, 2015 WL 6666244, at *7 (Bankr. D.N.M. Oct. 30, 2015);
Brigham Young Univ. v. Pfizer, Inc., 262 F.R.D. 637, 648 (D. Utah 2009). Initial reviews of
discovery responses and disclosures are tasks that litigants perform irrespective of
whether they ultimately file a motion to compel. See Maese, 2015 WL 6666244, at *7
(citing Mosaid Techs. Inc. v. Samsung Elecs. Co., 224 F.R.D. 595, 598 (D.N.J. 2004), and
In this context, the Court does not find that American Linen engaged in the meet and confer process
about Plaintiff’s Motion to Compel and for Sanctions in bad faith. Undoubtably, “[g]ood faith … prohibits
parties from ‘maintaining an untenable position at worst or a tenuous position at best’ during the meet
and confer process.” See doc. 435 at 30-31 (quoting W. Bend Mut. Ins. Co. v. Zurich Am. Ins. Co., 308 F.
Supp. 3d 954, 958-59 (N.D. Ill. 2018)). But, although the Court ultimately disagreed with the positions
that American Linen took about its discovery obligations during the parties’ meet and confer process, see
generally doc. 304, the positions were not so untenable as to warrant a finding of bad faith for this purpose.
6
30
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Tequila Centinela, SA de C.V. v. Bacardi & Co. Ltd., 248 F.R.D. 64, 69 (D.D.C. 2008)).
Therefore, expenses associated with initial reviews are not incurred in making the
motion. By contrast, though, expenses arising from additional reviews done while
drafting a motion compel are incurred in making that motion.
Here, Plaintiffs seek compensation for both initial and subsequent reviews of
American Linen’s discovery and disclosures. The Court does not award them the 2.6
hours that Mr. Baker, Ms. Ferrell, and Mr. Ross spent on October 5, 2020, reviewing
American Linen’s responses to Plaintiffs’ second discovery requests, see doc. 308-2 at 31,
since these reviews are initial reviews of discovery responses that American Linen
served that day, see doc. 248. The Court does award Plaintiffs the remaining 4.764 hours
that they claim for Mr. Baker reviewing American Linen’s disclosures, responses to
Plaintiffs’ first discovery requests, and materials about Plaintiffs’ investigation of
American Linen on July 21, 2020, and October 22, 2020, and compiling documents about
these materials on September 25, 2020, and September 27, 2020. See doc. 308-2 at 26, 3031. Mr. Baker’s work was not an initial review of discovery responses, but rather part of
the process of preparing Plaintiffs’ Motion to Compel about the deficiencies in
American Linen’s disclosures and first discovery responses, both of which American
Linen produced well before July 2020. Given the size of the record in the case and the
vast quantities of documents produced, 4.764 hours is a reasonable amount of time for
Mr. Baker to have spent on the claimed document review.
31
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Turning to the time claimed for drafting the Motion to Compel and for Sanctions
and its reply brief, the Court finds that the total time claimed is excessive. Courts in the
Tenth Circuit have occasionally found that multiple attorneys spending approximately
thirty hours on a discovery motion is reasonable. See, e.g., Fish v. Kobach, No. 16-21-05JAR, 2018 WL 3647132, at *6 (D. Kan. Aug. 1, 2018) (reducing the number of hours
claimed by three attorneys to draft, edit, revise, and review a 19-page motion for
contempt and its accompanying exhibits from 65 hours to 32 hours). Having multiple
attorneys write and revise on a single motion is not inherently duplicative. See Fox v.
Pittsburgh State Univ., 258 F. Supp. 3d 1243, 1257 (D. Kan. 2017) (“As most attorneys
know, the drafting process and editing process for legal writing are different.”). “The
fact that … an associate[] would draft, revise and edit [a discovery motion], while …
partners … would review, revise and finalize [that motion] is not duplicative—it is both
reasonable and thorough.” United States ex rel. Baker, 2013 WL 10914086, at *15.
Here, Plaintiffs’ Motion to Compel and for Sanctions and their reply totaled a
mere twelve and thirteen pages respectively, see docs. 263, 288, and did not raise
complex legal issues. American Linen’s discovery misconduct was plain: it answered
discovery requests and prepared its Rule 30(b)(6) designee based solely on corporate
records in its possession, see doc. 264-3 at 13, rather than making an effort to do so from
all information reasonably available to it, see doc. 304 at 35-38, 42-44; and it did not
further investigate or supplement its disclosures and discovery responses after the
32
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testimony of two former employees provided reasonable notice that its blanket denials
of PCE use and dry-cleaning operations were incorrect, see id. at 55-57. Plaintiffs had
also already briefed the issue of American Linen’s Rule 30(b)(6) designee’s lack of
preparation. See doc. 257 at 5-7. In light of the simplicity of these issues, the brevity of
the briefing, and the overlap between Motion to Compel and for Sanctions and other
briefing for which reasonable expenses have not been awarded, the Court finds that a
reasonable amount of time to prepare the Motion and its reply is half of that claimed by
Plaintiffs. Cf. Ad Astra Recovery Servs., Inc. v. Heath, Case No. 18-1145-JWB-ADM, 2020
WL 4346965, at *6 (D. Kan. July 29, 2020 (awarding 29.3 hours for six attorneys to brief a
motion to compel); VanMeter, 2020 WL 954771, at *4 (awarding 31.79 compensable hours
for two attorneys to brief a motion to compel and respond to a cross motion for
protective order).
Similarly, the Court finds that only some of the time claimed for preparing
exhibits associated with the Motion and its reply is reasonable. Claiming 3.6 hours for
preparing five exhibits totaling forty-nine pages for the Motion is reasonable. But
claiming 5.7 hours for excerpting ten pages of American Linen’s deposition transcript as
the sole exhibit for the reply is not. The Court, therefore, reduces that sum by eighty
percent.
Likewise, and finally, the Court finds that the only some of the 5.85 hours
claimed by Plaintiffs for their attorneys for communicating amongst themselves and
33
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 34 of 51
with them about the Motion to Compel and for Sanctions is recoverable in an expense
award pursuant to Rule 37(a)(5). Hours spent facilitating clients’ review of
correspondence sent to an opposing party during the meet and confer process are
incurred as part of that process, not in the course of bringing a motion to compel. But
hours spent apprising clients about the need to bring a discovery motion and soliciting
clients’ feedback on that motion are incurred in the course of bring that motion.
Therefore, the Court excludes from its award the hour that Ms. Ferrell spent on
September 20, 2020, facilitating Plaintiffs’ review of an email to American Linen about
the parties’ discovery dispute. See doc. 308-2 at 30. The remaining 4.85 hours claimed
for communications with Plaintiffs about the Motion to Compel are reasonable.
Based on the above, the Court awards Plaintiffs $10,931.85 in attorneys’ fees
arising from the Motion to Compel, broken down as follows:
Hours Awarded
Attorney
or
Paralegal
Mr.
Marten
Mr. Odell
Ms.
Ferrell
Ms.
Hammitt
Hourly
Rate
Review
Discovery
Responses
Client
Comm.
Motion
to
Compel
Drafting
& Editing
$400.00
0.0000
0.0000
0.0825
$380.00
0.0000
0.0000
$360.00
0.0000
$225.00
0.0000
Reply
Drafting
&
Editing
Reply
Exhibits
0.0000
0.1250
0.0000
0.2075
$83.00
0.0000
0.0000
5.7500
0.0000
5.7500
$2,185.00
4.8500
4.8590
0.0000
3.3500
0.0000
13.0590
$4,701.24
0.0000
3.3500
0.0000
0.0000
0.0000
3.3500
$753.75
34
Motion
Exhibits
Total
Hours
Fee
Award
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 35 of 51
Mr.
Mederios
Mr. Ross
Mr.
Baker
$190.00
0.0000
0.0000
0.4500
0.5000
1.1500
0.0000
2.1000
$399.00
$150.00
0.0000
0.0000
6.3750
0.0000
6.4750
0.0000
12.8500
$1,927.50
$90.00
4.7640
0.0000
0.8000
3.1000
0.0000
1.1400
9.8040
$882.36
4.7640
4.8500
15.9165
3.6000
16.850
1.1400
47.1205
$10,931.85
Totals:
iv.
PRESENTING & PREPARING THE FEE APPLICATION
Most of the time that Plaintiffs claim for their counsel to file the affidavit for
attorneys’ fees (doc. 308) is reasonable. “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; see also Maese, 2015 WL 6666244, at *7 (gathering
cases for the proposition that “fees incurred drafting the attorney fee affidavit come
within the ‘making the motion’ language of Rule 37(a)(5)(A)”). Plaintiffs claim a total of
114.95 hours7 of work performed by their attorneys broken down as follows: (i) 3.667
hours by Mr. Marten, Ms. Ferrell, Mr. Mederios, and Mr. Baker reviewing the Court’s
Order Granting in Part and Denying in Part Plaintiffs’ Motion to Compel and for
Sanctions;8 (ii) 8.2167 hours by Mr. Marten, Ms. Ferrell, Mr. Mederios, and Mr. Ross
corresponding and coordinating with Plaintiffs about the fee affidavit; (iii) 3.4667 hours
The hours columns in the attorney fees tables actually claim a total of 114.75 hours. See doc. 308-2 at 3435. This sum is 0.2 hours less than the amount that the Court credits Plaintiffs for claiming because
subtotals in the description for worked performed Mr. Mederios on February 1, 2021, total 1.6 hours,
rather than the 1.4 hours claimed in the hours column. See id. at 35.
8 The 3.5 hours claimed for Ms. Ferrell to review the Court’s Order, summarize it for clients, and start
coordinating the data gathering for the feed affidavit do not specify the time spent on each of these tasks.
See doc. 308-2 at 33. Therefore, the Court finds that Ms. Ferrell spent a third of the time claimed on each of
these three tasks.
7
35
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 36 of 51
by Ms. Ferrell, Mr. Mederios, Mr. Ross, and Mr. Baker coordinating the preparation of
the fee affidavit; (iv) 58.7 hours by Ms. Ferrell, Mr. Mederios, and Mr. Baker reviewing
invoices, bills, and other records to identify expenses responsive the Court’s Order and
preparing a spreadsheet about them; (v) 3.4 hours by Mr. Ross hours researching Tenth
Circuit case law about attorney’s fees; and (vi) 37.8 hours by Ms. Ferrell, Mr. Mederios,
Mr. Ross, Mr. Baker, and Ms. Goodrich drafting and editing the fee affidavit.
The Court does not award any fees for the time spent by Mr. Marten, Ms. Ferrell,
and Mr. Mederios, and Mr. Baker reviewing its Order Granting in Part and Denying in
Part Plaintiffs’ Motion to Compel and for Sanctions on February 1, 2021, the date that
the Order was issued. This Court and its sister courts do not reimburse parties for
reviewing materials that they would have reviewed irrespective of a sanctions award.
See Miller, 2021 WL 919868, at *2; Mosaid Techs., 224 F.R.D. at 598; Tequila Centinela, 248
F.R.D. at 69. Reading the Court’s Order for the first time is a task that Plaintiffs’
attorneys and paralegals would have performed regardless of whether the Order
awarded reasonable expenses, so hours spent on it are not part of preparing the expense
application.
The Court also finds the number of hours spent drafting the fee affidavit
excessive given the task’s lack of complexity. The fee affidavit is twenty-five pages in
length, but only a quarter or so those pages contain legal analysis. See doc. 308 at 2-8, 25.
The remainder summarize information from attached exhibits about the hours spent by
36
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 37 of 51
attorneys and paralegals performing various tasks and these individuals’ qualifications.
Gathering information about the hours spent is a time-intensive task but is already
claimed in the 58.7 hours that Ms. Ferrell, Mr. Mederios, and Mr. Baker spent reviewing
invoices, bills, and other records to produce a spreadsheet about these hours. Claiming
an additional 37.8 hours to reproduce the content of that spreadsheet in an affidavit is
unreasonable. Therefore, the Court reduces the number of hours claimed to prepare the
affidavit by fifty percent.
Finally, the Court finds the number of hours claimed by Plaintiffs for their
attorneys’ communication with them, internal coordination, legal research, invoice
review, and exhibit preparation reasonable for the most part. The Court’s Order
Granting in Part and Denying in Part Plaintiff’s Motion to Compel and for Sanction
awarded reasonable expenses arising from certain tasks performed between February
2019 and November 2020, a twenty-two-month period. Reviewing invoices and bills
from this period to identify responsive expenses, redact privileged information, and
prepare an exhibit summarizing these expenses is a time-intensive task. Therefore,
spending 58.7 hours performing this task and 3.4667 hours coordinating it is not
unreasonable. However, the 5.9 hours that Ms. Ferrell spent on February 3, 2021,
February 5, 2021, February 6, 2021, and February 7, 2021, reviewing historical bills for
responsive expenses, see doc. 308-2 at 33-34, is work that could have been by a paralegal.
Therefore, the Court awards it at the paralegal rate (i.e., $90/hour).
37
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 38 of 51
Based on the above, the Court awards Plaintiffs $12,702.00 in attorneys’ fees
arising from the preparation of their attorneys’ fee affidavit, broken down as follows:
Hours Awarded
Attorney
Hourly
or
Rate
Paralegal
Mr.
Marten
$400.00
Ms.
Ferrell
$360.00
Mr.
Mederios $190.00
Client
Comm.
Internal
Comm.
Invoice
Review &
Exhibit
Prep.
Legal
Affidavit
Research
Prep.
Total
Fee
Award
0.4000
0.0000
0.0000
0.0000
0.0000
0.4000
$160.00
5.5167
1.1667
5.90009
0.0000
3.4000 15.9833
$4,161.00
1.7000
0.8000
2.5000
0.0000
0.7500
5.7500
$1,092.50
Mr. Ross $150.00
Mr.
Baker
$90.00
Ms.
Goodrich $90.00
0.6000
1.2000
0.0000
3.4000
10.4500 15.6500
$2,347.50
0.0000
0.3000
50.3000
0.0000
3.6500 54.2500
$4,882.50
0.0000
0.0000
0.0000
0.0000
0.6500
Totals:
8.2167
3.4667
58.7000
3.4000
0.6500
18.9000 92.6833 $12,702.00
3. Reasonableness of Plaintiffs’ Claimed Expenses
Turning to the issue of expenses, only $3,294.15 of the $8,947.33 in expenses
claimed by Plaintiffs are reasonable. Reasonable expenses are those “[i]tems …
normally itemized and billed in addition to the hourly rate,” not “costs … normally
absorbed as part of firms’ overhead.” See Ramos, 713 F.2d at 559. Here, they include the
expenses that Plaintiffs incurred to take American Linen’s deposition, and some of the
costs that Plaintiffs incurred to take Mr. Castillo’s deposition and investigate American
9
These hours are awarded at the paralegal rate of $90/hour.
38
$58.50
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 39 of 51
Linen’s PCE dry-cleaning operations and PCE use. They do not include any of expenses
that Plaintiffs incurred for their attorneys and paralegals to travel to New Mexico for
these purposes.
i.
NON-TRAVEL EXPENSES
The Court awards Plaintiffs some of the non-travel expenses that they incurred
to take American Linen’s Rule 30(b)(6) deposition and investigate American Linen’s
dry-cleaning operations and PCE use. “Courts have generally held that the cost of
taking and transcribing depositions” is a type of reasonable expense generally charged
to a client. E.g., Ramos, 713 F.2d at 560 (gathering cases). Therefore, the expenses
claimed by Plaintiffs in April 2019 for the videographer, court reporter, and scanning
fees for American Linen’s Rule 30(b)(6) deposition, see doc. 308 at ¶ 35; doc. 308-2 at 37,
are awardable as claimed. For April 2019, Plaintiffs also claim that cost of serving Lynn
J. Gore, the owner of American Linen’s former laundry solutions supplier, see doc. 258-1
at 3, with a subpoena for his deposition, doc. 308 at ¶ 35; doc. 308-2 at 37. Plaintiffs,
though, never took Mr. Gore’s deposition. See doc. 264-1 at 1. Therefore, the Court
excludes expenses related to serving him from its award.
Similarly, the expenses claimed by Plaintiffs in August 2020 to serve Mr. Castillo,
record his deposition, and rent a conference room for his deposition, see doc. 308 at ¶ 50;
doc. 308-2 at 40, are also awardable. Plaintiffs, though, claim the cost of two witness fees
for Mr. Castillo, see doc. 308 at ¶¶ 38, 50; doc. 308-2 at 37, 40, even though he was
39
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 40 of 51
deposed once. Therefore, the Court excludes the witness fee paid to Mr. Castillo in July
2019, see doc. 308-2 at 37, from its award. The Court also reduces the expenses awarded
for Mr. Castillo’s deposition by fifty percent to account for its finding that only half this
deposition arises from American Linen’s failure to supplement.
Courts have also found the fees to search databases during a factual investigation
are reasonable expenses generally charged to clients. See, e.g., Utah Physicians, 2021 WL
254268, at *21 (CarFax searches). Therefore, the Court awards Plaintiffs the $20.31 that
they incurred to obtain copies of documents relevant to American Linen’s dry-cleaning
activities and PCE use from the NMSU Archives in September 2019. See doc. 308-2 at 38.
American Linen claims that it should not bear this expense because Plaintiffs control
these documents. See doc. 316 at 8. Who controls these documents is immaterial to
whether expenses for locating and obtaining digital versions of them arise from
American Linen’s failure to supplement. Even if Plaintiffs are voluntarily storing hard
copies of these documents in the Archives as American Linen claims, their attorneys
still had to pay to copy and obtain digital versions of them so Plaintiffs could bear their
burdens of proof and production for the American Linen’s PCE use and dry-cleaning
activities, matters that remained disputed at the time due to American Linen’s failure to
supplement.
40
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 41 of 51
ii.
TRAVEL-RELATED EXPENSES
Most travel-related expenses claimed by Plaintiffs for counsel to attend American
Linen’s Rule 30(b)(6) deposition and investigate American Linen’s operational history
are not awardable. The Court cannot award “travel-related expenses incurred solely
because [a party] hired out-of-state attorneys and paralegals” if there was no need to
retain out-of-market counsel. Utah Physicians, 2021 WL 254268, at *20 (citing Ramos, 713
F.2d at 559) (refusing to award expenses for airfare, gas, and lodging for out-of-market
counsel to travel to the area of litigation); see also Three RP Ltd. P’ship v. Dick’s Sporting
Goods, Inc., Case No. 18-CIV-003-RAW, 2019 WL 7717395, at *4 (E.D. Okla. Apr. 10,
2019) (reducing expenses awarded by the cost of out-of-market counsel to travel to and
from Oklahoma for conferences and depositions). The Court, though, may award
Plaintiffs the reasonable travel expenses that they incurred for their attorneys to travel
within New Mexico and to states other than New Mexico to investigate American
Linen’s dry-cleaning activities and PCE use. See Utah Physicians, 2021 WL 254268, at *21.
The travel expenses claimed by Plaintiffs include expenses for their attorneys to travel
to New Mexico, within New Mexico, and to states other than New Mexico. Therefore,
the Court will review each trip in turn.
41
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 42 of 51
a. Ms. Ferrell’s Trip to Las Cruces in March and April 2019 for
American Linen’s Deposition
Most expenses claimed for Ms. Ferrell’s trip to Las Cruces in March and April
2019 for American Linen’s Rule 30(b)(6) deposition arose solely from her needing to
travel to New Mexico for this deposition. Were Ms. Ferrell counsel from the area, she
would have commuted to and from the deposition in a single day and not incurred
expenses of airfare, lodging, an Uber ride to the airport, and morning or evening meals.
Expenses she incurred during that commute—such as gas and mileage—and
workday—such as a midday meal—would be awardable. See, e.g., DeYapp v. Tracy, No.
Civ. 02-452 JP/RLP, No. Civ. 02-453 JP/RLP, 2006 WL 8443596, at *4 (D.N.M. Oct. 23,
2006) (awarding expenses for travel between Albuquerque, New Mexico and
Farmington, New Mexico for depositions). Therefore, the Court awards Plaintiffs one
third of the costs of Ms. Ferrell’s meals on the day of the deposition, but no other
expenses from this trip.
b. Ms. Hammitt’s Investigatory Trip to Las Cruces in May 2019
The Court cannot determine to extent to which the meal and travel expenses
claimed by Plaintiffs for Ms. Hammitt’s trip to Las Cruces in May 2019 to interview
Casper Lutz and Billy Watkins were solely because Ms. Hammitt is an out-of-market
attorney. Plaintiffs bear the burden of establishing the reasonableness of an attorney fee
award and have not presented expenses for this trip in a way that allows the Court to
42
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 43 of 51
segregate expenses arising solely from out-of-market travel. See doc. 308-2 at 37.
Therefore, the Court awards none of the expenses claimed Ms. Hammitt’s trip to Las
Cruces in May 2019.
c. Ms. Hammitt’s, Ms. Wightman’s, and Ms. Goodrich’s
Investigatory Trip to Las Cruces in September 2019
The Court awards some of the travel expenses that Plaintiffs claim for Ms.
Goodrich’s, Ms. Hammitt’s, and Ms. Wightman’s four-night trip to Las Cruces in
September 2019 to conduct research in the NMSU Archives. Expenses for airfare,
airplane Wi-Fi, transportation to the airport, parking at the airport, rental cars, FedEx,
and meals and hotels the day of air travel were all incurred solely because these
individuals had to travel to New Mexico for this research and so are not awardable. By
contrast, expenses for gas and meals and hotel rooms in Las Cruces on days spent
conducting research do not rise solely from for Ms. Goodrich, Ms. Hammitt, and Ms.
Wightman being from out of the area. New Mexico attorneys and paralegals would
have accrued these expenses had they traveled from elsewhere in the state to Las
Cruces for this research. To eliminate nights in hotels necessitated by their air travel,
the Court awards Plaintiffs half the claimed expenses for Ms. Goodrich’s, Ms.
Hammitt’s, and Ms. Wightman’s lodging. It also awards Plaintiffs all the expenses
43
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 44 of 51
claimed for gas and meals on September 10, 2019, September 11, 2019, and September
12, 2019.10 It excludes all other travel expenses for this trip from its award.
d. Mr. Phillips Investigatory Trip to Southern New Mexico, El
Paso, and Dallas, Texas in October and November 2019
The Court awards some of the travel expenses that Plaintiffs claim for Mr.
Phillips’ trip to Las Cruces, El Paso, and Dallas, Texas in October and November 2019 to
interview potential witnesses about American Linen’s dry-cleaning activities and PCE
use. Like Ms. Ferrell’s September 2019 trip, expenses claimed for FedEx and airfare to
El Paso are not awardable because Plaintiffs incurred them solely due to hiring out-ofmarket counsel. Relatedly, the Court does not award the expense claimed for airfare to
Dallas since the hours claimed for Mr. Phillips’ work during this trip all occurred in Las
Cruces, other parts of Southern New Mexico, or El Paso. See doc. 308-2 at 15-17
(claiming hours for worked performed by Mr. Phillips while traveling in October and
November 2019 to interview witnesses in Las Cruces; Anthony, New Mexico; and El
Paso).
Turning to the issues of lodging and meals, the Court does not award the costs of
hotel reservations in an unspecified location expensed on October 10, 2019, see id. at 39,
since it cannot determine, based on the information before it, whether the lodging was
Unlike for expenses arising from other trips to Las Cruces, the Court does not reduce any of the
expenses awarded for the September 2019 trip on account of causation because Plaintiffs only conducted
archival research on this trip and American Linen’s failure to supplement was the but-for cost of the
entirety of the archival research portion of Plaintiffs’ investigation.
10
44
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 45 of 51
for the Dallas portion of the trip for which the Court is not awarding expenses. Nor
does the Court award the cost for a hotel room in El Paso on October 28, 2019—the day
of Mr. Phillips’ travel to the area—since Plaintiffs accrued it solely because Mr. Phillips
is an out-of-market attorney who needed to travel to the area the day before conducting
witness interviews and other tasks related to Plaintiffs’ investigation of American
Linen. As for hotel rooms and meals in Las Cruces from October 29, 2019, through
November 10, 2019,11 see id., the Court awards the meal and hotel-specific expenses at
sixty-two and a half percent reduction—fifty percent to account for its finding that
American Linen’s failure to supplement is a but-for cause of only half of Plaintiffs’
witness investigation and twenty-five percent of the remaining fifty percent to account
for Plaintiffs not claiming hours for tasks performed by Mr. Phillips after November 8,
2019 that necessitated him spending the nights of November 8-10, 2019, in Las Cruces,
see id. at 16-17. Plaintiffs also claim a block expense on November 25, 2019, for hotel
rooms, baggage fees, rental car, and gasoline. See id. at 39. This expenditure contains
expenses incurred solely because Mr. Phillips is an out-of-market counsel (baggage fees
and rental car) as well as expenses that would have been incurred even if Mr. Phillips
were a local attorney (hotel rooms and gasoline). Because the Court has no way to
Plaintiffs have not provided specific dates for Mr. Phillips’ trip to Las Cruces, El Paso, and Dallas in
October and November 2019. Based on the limited record before it, the Court finds that Mr. Phillips spent
the nights of October 29, 2019, through November 10, 2019, in Las Cruces. See doc. 308-2 at 14, 39
(claiming hours for tasks Mr. Phillips performed in Las Cruces on October 29, 2019 and travel expenses
for Mr. Phillips in Las Cruces from October 30, 2019, to November 11, 2019).
11
45
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 46 of 51
segregate the latter form the former, the Court does not award any portion of the block
expense.
e. Mr. Phillips Investigatory Trip to Las Cruces in March 2020
The Court awards a reduced amount for the travel expenses claimed by Plaintiffs
for Mr. Phillips’ March 2020 trip to interview potential witnesses in Las Cruces about
American Linen’s dry-cleaning activities and PCE use. Unlike the October and
November 2019 trip, Mr. Phillips traveled to Las Cruces in March 2020 by car as part of
an investigatory trip to New Mexico and Texas. The Court, therefore, considers the
mileage Plaintiffs claims for traveling to Las Cruces akin to the mileage that a New
Mexico attorney based elsewhere in the state would charge a client to travel to Las
Cruces and so does not find that Plaintiffs incurred any portion of this expense solely
because they retained out-of-market counsel. The Court also finds that Plaintiffs did
not incur any of the meals and lodging that Mr. Phillips expensed on this trip solely
because he is an out-of-market counsel, since the meals and hotel rooms were for days
that Mr. Phillips spent on the witness investigation, rather than traveling to the area to
conduct that investigation. The Court, though, reduces each expense awarded for this
trip by fifty percent to account only half of the witness investigation arising from
American Linen’s failure to supplement.
46
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f. Ms. Ferrell’s Trip to Las Cruces in August 2020 for Mr. Castillo’s
Deposition
Similar to Ms. Ferrell’s 2019 trip to Las Cruces for American Linen’s deposition,
many expenses claimed for Ms. Ferrell’s August 2020 trip to Las Cruces for Mr.
Castillo’s deposition are not awardable. Were Ms. Ferrell from the area, she would
have commuted to and from the deposition in a single day and only expensed gas and a
midday meal. She would not have expensed airfare, a one-night hotel stay, or morning
and evening meals. The Court therefore only awards Plaintiffs the gas for Ms. Ferrell’s
rental car and one third of the costs of Ms. Ferrell’s meals on the day of the deposition.
Though, it reduces this award by fifty percent to account for only half of Mr. Castillo’s
deposition arising from American Linen’s failure to supplement. No other expenses for
this trip are awarded.
***
Based on the above, the Court awards Plaintiffs $3,294.15 in expenses arising
from their Rule 30(b)(6) deposition and investigation of American Linen, broken down
as follows:
Claimed Expense
Date
$27.31
4/1/2019
$424.76
4/2/2019
$223.07
4/3/2019
Description
Ms. Ferrell's Meals (American
Linen Deposition)
American Linen Deposition Video
Recording
American Linen Deposition
Scanning
47
Reduction
Awarded
Expense
66.6667%
$9.10
0
$424.76
0
$223.07
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 48 of 51
$1,017.29
4/10/2019
American Linen Deposition Court
Recorder
$29.14
9/10/2019 9/12/2019
Ms. Wightman's Meals (Sept. 2019
Investigatory Trip)
0%
$29.14
$28.67
9/10/2019 9/12/2019
Ms. Hammitt's Meals (Sept. 2019
Investigatory Trip)
0%
$28.67
$1.59
9/10/2019 9/12/2019
0%
$1.59
$5.50
9/11/2019
Ms. Goodrich's Meals (Sept. 2019
Investigatory Trip)
Gas for Rental Car (Sept. 2019
Investigatory Trip)
0%
$5.50
50%
$164.98
0
$9.81
0
$10.50
Mr. Phillips Lodging (Oct.-Nov.
2019 Investigatory Trip)
62.50%
$173.71
Mr. Phillips Meals (Oct.-Nov. 2019
Investigatory Trip)
62.50%
$57.17
$329.96
9/10/2019 9/12/2019
Ms. Goodrich's, Ms. Wightman's,
& Ms. Hammitt's Lodging (Sept.
2019 Investigatory Trip)
$9.81
9/11/2019
NMSU Archive Fee (Sept. 2019
Investigatory Trip)
$10.50
9/12/2019
NMSU Archive Fee (Sept. 2019
Investigatory Trip)
$463.23
$152.44
10/9/2019,
11/3/2019,
11/4/2019,
11/10/2019
11/25/2019
0
$1,017.29
$679.69
3/2/2020,
3/4/2020,
3/5/2020,
3/6/2020,
3/9/2020
Mr. Phillips Lodging (Mar. 2020
Investigatory Trip)
50%
$339.85
$10.63
3/5/2020,
3/8/2020
M. Phillips Meals (Mar. 2020
Investigatory Trip)
50%
$5.31
50%
$331.49
$662.98
3/11/2020
Mr. Phillips Mileage (Mar. 2020
Investigatory Trip)
$51.12
8/21/2020
Ms. Ferrell's Meals (Mr. Castillo
Deposition)
83.3333%
$8.52
$16.96
8/21/2020
Gas for Rental Car (Mr. Castillo
Deposition)
50%
$8.48
$57.71
8/5/2020
Mr. Castillo Depo. Witness Fee
50%
$28.86
$125.00
8/11/2020
Mr. Castillo Depo. Process Server
50%
$62.50
$538.02
8/26/2020
Mr. Castillo Depo. Recorder
50%
$269.01
48
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 49 of 51
$169.69
8/19/2020
Mr. Castillo Depo. Conference
Room Rental
50%
Total:
$84.85
$3,294.15
4. American Linen’s Ability to Pay
American Linen asks the Court to factor its inability to pay the sum claimed by
Plaintiffs without obtaining a loan into any expense award. Doc. 316 at 4 & n.3 (citing
doc. 316-1). “[A]bility to pay must … be considered, not because it affects the
egregiousness of the violation, but because the purpose of monetary sanctions is to
deter attorney and litigant misconduct.” White v. Gen. Motors Corp., 908 F.2d 675, 685
(10th Cir. 1990); see also Pipeline Prods., Inc. v. Madison Cos., Case No. 15-4890-KHV, 2019
WL 2011377, at *3 (D. Kan. May 7, 2019) (“While White involved sanctions under Rule
11, its principles apply equally to sanctions under other rules.” (ellipsis and citation
omitted)). Nonetheless, “inability to pay should be treated like an affirmative defense,
with the burden upon the parties being sanctioned to come forward with evidence of
their financial status.” Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1160
(10th Cir. 1991) (internal quotation marks and citation omitted). The “bald assertion
that [a party is] on the verge of financial collapse is … insufficient to establish an
inability to pay.” Id.
Michael Lutz, American Linen’s president, asserts that
The only way that American Linen could possibly pay a sanction in the amount
sought by Plaintiffs would be to obtain a loan subject to interest at the market
49
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 50 of 51
rate. Due to American Linen’s current financial state, it is unclear that American
Linen could obtain a loan in that amount at this time, or what the terms of such a
loan would be. [And] [a]ssuming that American Linen could get a loan …,
American Linen would have to pay back the loan according to its terms, which
would make the cost of the loan considerably more than the amount of the
sanction over the life of the loan.
doc. 316-1 at ¶¶ 8–9. To the extent that these concerns remain for a sanction award that
is approximately one third of the amount sought by Plaintiffs, Mr. Lutz’s conclusory
assertions do not bear the burden of establishing American Linen’s inability to pay. See
White, 908 F.2d at 685 (holding that affidavits claiming that sanctioned entities “would
be forced into bankruptcy if the court imposed [the] requested attorney’s fees” were
insufficient to establish an inability to pay). Therefore, the Court has not considered
American Linen’s ability to pay a sanctions award in deciding that award’s sum.
B. PROPORTIONALITY
American Linen also attempts to relitigate whether its failure to supplement was
substantially justified based on its investigation of its historical operations, its
understanding of these operations, and its belief that it had complied with its discovery
obligations. See doc. 316 at 3. The Court found otherwise when it sanctioned American
Linen for not timely supplementing its disclosures and discovery responses pursuant to
Federal Rule of Civil Procedure 37(c). See doc. 304 at 59–62. American Linen filed
objections to this finding, see doc. 315 at 18–22 & n.4, which the Court overruled, see doc.
348 at 10–14. The Court sees no reason to revisit the issue.
50
Case 2:17-cv-00809-JCH-GBW Document 454 Filed 12/15/21 Page 51 of 51
IV.
CONCLUSION
For the reasons above, the Court AWARDS Plaintiffs reasonable expenses and
fees in the sum of $79,491.41. American Linen is HEREBY ORDERED to tender this
sum to Plaintiffs in full within forty-five (45) days of this Order. If a party files
objections or otherwise appeals this order, this deadline will be suspended in favor
of one set in the Order resolving the objections/appeal.
IT IS SO ORDERED.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
51
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