Gorzynski v. Jetblue Airways Corporation

Filing 74

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 72 MOTION for Attorney Fees filed by Diane GorzynskiPlaintiff's application to recover reasonable motion expenses (Docket No. 72) is denied.So Ordered. Signed by Hon. Hugh B. Scott on 4/12/2012. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DIANE GORZYNSKI,
Plaintiff,

Hon. Hugh B. Scott
v.
03CV774A
Order
JETBLUE AIRWAYS CORPORATION,
Defendant.

Before the Court is plaintiff’s motion to compel supplemental discovery (Docket
No. 671). That motion was granted and plaintiff was granted leave to apply to recover her
reasonable motion expenses (Docket No. 71). Now before this Court is plaintiff’s timely
application (Docket No. 722); defendant responded opposing relief (Docket No. 73). Familiarity
with the previous Order (Docket No. 71) is presumed.
BACKGROUND
This is a Title VII action in which, according to the Second Circuit decision in this case,
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 95 (2d Cir. 2010) (see also Docket No. 41,
Mandate of Second Circuit; Docket No. 1, Compl.), plaintiff alleges that her former employer,

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In support of her motion, plaintiff submits her attorney’s affidavit with exhibit, Docket
No. 67; her attorney’s Reply Declaration and Reply Memorandum of Law, Docket No. 70.
In opposition, defendant submits the Declaration of its counsel (with exhibits), the
declaration of Gioia Gentile (a paralegal in JetBlue’s legal department), and opposition
Memorandum, Docket No. 69.
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In support of this application, plaintiff submits her attorney’s declaration with exhibits,
Docket No. 72. In opposition, defendant submits its attorney’s declaration with exhibits and
opposition Memorandum of Law, Docket No. 73.

defendant JetBlue Airways (“JetBlue”) discriminated against her based on age and gender and
retaliated against her for complaining to her supervisors about that age and gender
discrimination, as well as race discrimination against other employees. Discovery in this action
was conducted in 2005. Upon JetBlue’s motion for summary judgment, Judge John Elfvin
dismissed the Complaint in its entirety. The Second Circuit vacated and remanded the case for
further proceedings. Upon remand, the case was reassigned to Judge Richard Arcara (Docket
No. 42) and referred to the undersigned for pretrial matters (Docket No. 47).
On March 1, 2011, a status conference was held wherein plaintiff produced updated
expert and other disclosures and awaited defense updated disclosure (Docket No. 58), which
were exchanged (Docket No. 60). At the last status conference in this case, on December 7,
2011, plaintiff indicated that she would move to compel supplemental discovery (Docket
No. 66).
Plaintiff now seeks an Order compelling defendant to respond to her First Request for
Production of Documents (Docket No. 67). In 2005, she had written to Judge Elfvin to have him
compel production from defendant and Judge Elfvin ordered production of personnel records and
payroll records of certain identified individuals (id., Pl. Atty. Decl. ¶¶ 5-6, Ex. B). Judge Elfvin
granted plaintiff’s motion to compel production of the non-privileged documents (Docket No. 23,
Order of Aug. 4, 2005). After appeal of the summary judgment Order and the proceedings
discussed above, plaintiff’s counsel wrote to defendant, on December 14, 2011, seeking
supplementation of defense discovery responses (Docket No. 67, Pl. Atty. Decl. ¶ 15. Ex. D).
Plaintiff seeks supplementation of personnel documents, payroll records (including W-2 forms)
of numerous employees who either are still JetBlue employees or were employed there beyond
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the 2005 production (id. ¶¶ 17-23, Ex. D). JetBlue contends that plaintiff seeks documents on 23
current and former employees stationed at Buffalo, New York, from the 2005 discovery (Docket
No. 69, Def. Memo. at 2-3). After objecting to resuming discovery after the original discovery
deadline (see id. at 3, citing Docket No. 58, Minute Entry and Order of Mar. 1, 2011), during the
week of January 23, 2012, JetBlue supplemented its response regarding personnel and payroll
records (Docket No. 69, Def. Memo. at 4; id., Def. Atty. Decl. ¶ 11). Defense counsel called
plaintiff’s counsel asking for withdrawal of the motion to compel but plaintiff’s counsel refused
because she believed one current employee’s records may not have been supplemented (Docket
No. 69, Def. Memo. at 4). Both parties sought sanctions for this motion (compare Docket
No. 69, Def. Memo. at 8-9 with Docket No. 70, Pl. Atty. Reply Decl. ¶¶ 23-24, 26).
Other than this discovery dispute, this case is ready for trial (see Docket No. 66).
This Court granted plaintiff’s motion to compel supplementation and production on
defendant’s discovery (Docket No. 71, Order of Mar. 5, 2012, at 5-8). This Court found that
plaintiff prevailed (in part from defendant supplementing in the face of the motion and from the
grant by this Court), under Federal Rule of Civil Procedure 37(a)(5)(A), and plaintiff was entitled
to apply to recover her reasonable motion costs. Plaintiff had until March 15, 2012, to apply and
defendant had until March 26, 2012, to respond (id. at 9).
After recounting the procedural history for her motion (Docket No. 72, Pl. Atty. Decl.
¶¶ 9-24, Ex. A), plaintiff argues that defendant’s failure to supplement was without justification
(id. ¶¶ 8, 25) and denies that other circumstances would warrant denying recovery of her costs
(id. ¶ 26). Plaintiff presents her attorney’s itemized time records from December 7, 2011, after
the status conference (Docket No. 66) where plaintiff indicated that she might need to move to
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compel supplementation, to present reveals for time she claims was reasonably expended in
making the motion to compel and the fee application (Docket No. 72, Pl. Atty. Decl. ¶ 28, Ex.
B). Attorney Josephine Greco’s customary rate is $300 per hour while the rate of Duane
Schoonmaker is $200 per hour (id. ¶ 29), rates comparable for civil rights matters in this
community (id. ¶ 30). At those respective rates, Greco spent 1.4 hours on this motion and
Schoonmaker 33.9 hours (including 2.4 hours preparing the application), for a total rate claimed
of $7,200 (id. ¶¶ 31-32, 33, Ex. B). She does not seek to recover other motion related expenses.
Defendant responds that it never obstructed discovery and produced what it had that was
responsive to plaintiff’s demands (Docket No. 73, Def. Memo. at 2). Even if payment of
expenses should be ordered, defendant objects to the hours claimed as being excessive or
unnecessary (id. at 2 n.1). Defendant claims that, after discovery was closed in March 2006 and
the appeal of the summary judgment entered, it had supplemented discovery in May 2011, but
learned for the first time of plaintiff’s contention that further supplementation was required in
December 2011 (id. at 2-3). Believing that it would be timely to respond no later than January 6,
2012, defendant searched for supplemental records but plaintiff moved to compel on January 4,
2012 (id. at 3; see Docket No. 67, Pl. Motion of Jan. 4, 2012). Defendant found performance
evaluations of some employees that were inadvertently not produced and did not find records as
to the other persons sought by plaintiff (Docket No. 73, Def. Memo. at 3-4; id., Def. Atty. Decl.
¶¶ 3-7, 8-10). Pursuant to this Court’s Order, defendant supplemented the personnel records of
Cheryl Harrison where records were inadvertently not included in supplemental production (id.,
Def. Memo. at 5).

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DISCUSSION
I.

Motion to Compel Standards
Discovery under the Federal Rules is intended to reveal relevant documents and

testimony, but this process is supposed to occur with a minimum of judicial intervention. See
8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure
§ 2288, at 655-65 (Civil 2d ed. 1994). Federal Rule of Civil Procedure 37(a) allows a party to
apply to the Court for an Order compelling discovery, with that motion including a certification
that the movant in good faith conferred or attempted to confer with the party not making the
disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(2)(A).
Under Rule 37(a)(5)(A), this Court “must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion, the party or attorney advising the
conduct, or both to pay the movant’s reasonable expenses incurred in making the motion,
including attorney’s fees.” The imposition of this sanction may not occur if movant filed the
motion before attempting in good faith to resolve this without Court intervention, but this Court
found that plaintiff attempted in good faith to so resolve this matter; if the non-disclosure was
substantially justified; or other circumstances made an award of expenses unjust.
Imposition of Rule 37(a)(5) sanctions for failure to comply with discovery demands must
be weighed in light of the full record. Johanson v. County of Erie, No. 11CV228, 2012 U.S.
Dist. LEXIS 6772, at *3 (W.D.N.Y. Jan. 20, 2012) (Scott, Mag. J.); see Cine Forty-Second Street
Theatre Corp. v. Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979). The key here is
that the movant is entitled only to reasonable costs and attorneys’ fees, if entitled to recover
anything at all. “If the court determines to award expenses and fees, it is for the court to decide
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what amount is proper.” 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal
Practice and Procedure § 2288, at 666-67 (Civil 2d ed. 1994); see also Addington v. MidAmerican Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (three hours at $50 per hour held
excessive where opponent merely failed to make timely response to interrogatories, reducing
time to one hour). The rate or amount an attorney bills his or her client (especially where, as
here, the client may never be billed due to the fee arrangement counsel has with the client)
related to discovery or a motion to compel does not make that rate or time expended reasonable
under Rule 37 as reasonable motion expenses. See Kahn v. General Motors Corp., No. 88 Civ.
2982, 1993 U.S. Dist. LEXIS 5196, at *4 (S.D.N.Y. Apr. 19, 1993).
Using the lodestar (or the “presumptively reasonable fee,” see Arbor Hill Concerned
Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110, 111(2d Cir. 2007)) method for
calculating the reasonable attorney’s fee, Johnson v. The Bon-Ton Stores, No. 05CV170, Docket
No. 39, 2006 U.S. Dist. LEXIS 20019, at *8 (W.D.N.Y. Apr. 17, 2006) (Scott, Mag. J.); see
Hensley v. Eckerhart, 461 U.S. 424, 429-30, 430 n.3 (1983) (applying for fees under 42 U.S.C.
§ 1988), the components for determining the reasonable attorneys’ fee are the moving attorney’s
time spent on the motion and the reasonable billing rate for that attorney. The last component for
determining the reasonable motion expenses are the other motion expenses incurred. In
calculating the “presumptively reasonable fee,” this Court “should generally use the prevailing
hourly rate in the district where it sits to calculate what has been called the ‘lodestar,’” Arbor
Hill, supra, 493 F.3d at 111. The movant seeking reimbursement bears the burden of proving the
hours spent and the prevailing rates. 7 Moore’s Federal Practice–Civil § 37.23[8] (2005); see
Johnson, supra, 2006 U.S. Dist. LEXIS 20019, at *11.
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II.

Application

Whether to Impose Sanctions at All
Defendant argues that it need not be disciplined for inadvertent omissions in its
supplementation (Docket No. 73, Def. Memo. at 6). First, defendant should not be sanctioned
for not producing documents that do not exist (id. at 6-7). Second, defendant argues that it
should not be sanctioned for not responding as soon as plaintiff wanted (leading to plaintiff’s
January 4 motion) when it stated its willingness to supplement on January 6 (id. at 7; cf. Docket
No. 72, Pl. Atty. Decl. Ex. A (letter of Jan. 6, 2012)). Since defendant never refused to
supplement a particular item, rather a few pages were inadvertently not produced, plaintiff should
not have her fees awarded (Docket No. 72, Def. Memo. at 7), thus defendant was substantially
justified in the timing and scope for its supplementation (id. at 9).
Defendant offered to supplement in the face of the motion, but within the 30-day period
stated by the Court during the December 7, 2011, status conference for the parties either to
resolve the supplementation issue or have a motion filed (see Docket No. 66). The result
confirmed the non-existence of certain categories of documents sought and the location of
documents that would have been produced earlier but were overlooked. Defendant would be
sanctioned here, in effect, for not responding to a December 14, 2011, letter spelling out the
supplementation sought (cf. Docket No. 72, Pl. Atty. Decl. ¶¶ 13-14). Awarding attorney’s fees,
especially for a total of $7,200, for the limited discovery produced would be unjust here. Thus,
plaintiff’s application for award of her reasonable motion expenses (Docket No. 72) is denied.

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CONCLUSION
For the reasons stated above, plaintiff’s application (Docket No. 72) to recover reasonable
costs for her motion to compel production of supplemental materials (Docket No. 67) is denied.
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
April 12, 2012

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