Nowlin v. 2 jane doe female et al
Filing
192
-CLERK TO FOLLOW UP-ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER granting 186 Motion for Attorney FeesPlaintiff's claim of $3,663.00 for motion expenses is reasonable. The Monroe County defendants and the Rochester defendants (as defined in this Order) are jointly liable for this expense; their respective counsel are not. Clerk to enter judgment to recover this fee award.So Ordered. Signed by Hon. Hugh B. Scott on 10/16/2014. (DRH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
QUINTIN A. NOWLIN,
Plaintiff,
Hon. Hugh B. Scott
11CV712S
v.
Order
KELLEY LUSK et al.,
Defendants.
Before the Court is plaintiff’s application to recover his reasonable motion expenses
(Docket No. 186) 1, following prevailing in part on his motion (Docket No. 179; cf. Docket
No. 184, Order of July 29, 2014) to compel (Docket No. 185, Order of Aug. 5, 2014). This fee
application was due within seven days of entry of the August 5, 2014, Order (or by August 12,
2014), with timely responses due within fourteen days of entry of that Order (or by August 19,
2014) (Docket No. 185, Order of Aug. 5, 2014, at 9-10). After the response was filed, plaintiff
was given leave to file his reply by August 29, 2014 (Docket No. 188), and the matter was
deemed submitted as of that date.
1
In support of his application, plaintiff submits his attorney’s Declaration, Docket No. 186 (Declaration of
Shea Kolar), with Exhibit A (contemporaneous time records); his Memorandum of Law, id.; his attorney’s Reply
Declaration, Docket No. 189 (Declaration of Kenneth Krajewski). In response, the Monroe County defendants
submit their attorney’s Declaration, Docket No. 187. There was no response from the Rochester defendants.
The parties are presumed to be familiar with the designation of “Monroe County defendants” and
“Rochester defendants” from prior proceedings in this case, as well as the Order regarding the latest round of
discovery in this case, Docket No. 185.
BACKGROUND
This is a civil rights action, formerly commenced pro se by an incarcerated plaintiff but
now prosecuted by counsel appointed by this Court (Docket No. 170). Plaintiff through counsel
sought leave to serve additional Interrogatories and discovery demands from defendants (Docket
No. 179), without distinction between the Monroe County defendants or the Rochester
defendants. The Monroe County defendants only responded while the Rochester defendants did
not respond or join in the County’s response (Docket No. 181; see Docket No. 185, Order of
Aug. 5, 2014, at 1 n.1, 5). That motion was granted, to allow plaintiff to serve additional
discovery and Interrogatories (Docket No. 185, Order of Aug. 5, 2014, at 6-8) and certain arrest
materials from plaintiff’s August 5, 2010, arrest (id. at 8), but denied in producing Grand Jury
materials (id. at 8-9).
Since plaintiff partially prevailed in his motion to compel, under Rule 37(a)(5)(C), this
Court may apportion the reasonable motion expenses (id. at 9). Plaintiff was given leave to
apply to recover his reasonable motion expenses for the relief he prevailed in, and all parties
were to address apportioning liability among the defendants and their counsel (id. at 9-10).
Plaintiff’s Fee Application
Plaintiff seeks to recover motion expenses totaling $3,663.00 to be divided equally
between the defendants (Docket No. 186, Kolar Decl. ¶¶ 5, 6). The attorney’s time was entirely
incurred by Shea Kolar, at a rate of $180 per hour for prevailing arguments and a reduced rate of
$90 per hour for unsuccessful arguments where those could not be separated from prevailing
arguments. Plaintiff also discounted services that were not related to prevailing arguments.
(Docket No. 186, Pl. Memo. at 2). According to plaintiff’s calculations, Kolar worked 9.8 hours
2
on prevailing issues, for a total of $1,764.00 at the full $180 per hour rate, and 21.1 hours on
other issues, for a total of $1,899.00, at the reduced $90 per hour rate (id. at 2). Kolar does not
state his level of experience to justify the $180 per hour rate, although he was admitted to
practice before this Court in May of this year.
The Rochester defendants did not respond. The Monroe County defendants argue that
other circumstances make an award (or a full award) of expenses unjust against them (Docket
No. 187, Monroe County Defs. Atty. Decl. ¶ 4). The Monroe County defendants note that of the
ten previous motions by plaintiff to compel; only two were addressed to the Monroe County
defendants (id. ¶¶ 8, 9). They dispute plaintiff’s characterization that “’time and time again’”
that they “’neglected’ to provide discovery responses” (id. ¶ 10). The Monroe County
defendants seek to distinguish themselves from the Rochester defendants (id. ¶ 11). They also
argue that they were justified in opposing the additional number of Interrogatories since they
exceeded the limits within the Federal Rules (id. ¶ 12). They argue that plaintiff’s need for
additional Interrogatories arose from the then-pro se plaintiff and his “inadequate”
Interrogatories (id. ¶ 13). They also object to time plaintiff claims for reviewing the docket, in
particular time plaintiff’s counsel was becoming acquainted with the file (id. ¶ 15). The Monroe
County defendants conclude that imposing any expense award upon them would be unjust (id.
¶ 16) or diminished in proportion to the Rochester defendants’ responsibility (id. at page 4,
“Wherefore” Cl. ¶ C).
Plaintiff replies that the fee request was reasonably and necessarily incurred in
representing plaintiff (Docket No. 189, Krajewski Decl. ¶ 3). The initial file review (to which
the Monroe County defendants object) was done in preparation of the motion for leave to serve
3
additional discovery (id. ¶ 5). Resting upon this Court’s decision that further Interrogatories
were necessary, plaintiff concludes that his additional discovery propounded by counsel was
necessary (id.¶ 6). He states that this need would not have arisen if the earlier discovery
responses by defendants (including the Monroe County defendants) were adequate (id. ¶ 7).
DISCUSSION
I.
Standard
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)(5)(A). Where, as here, there is
partial recovery, this Court must apportion the expenses to determine what is reasonable for each
party, see Fed. R. Civ. P. 37(a)(5)(C). The imposition of this initial sanction may not occur if
movant filed the motion before attempting in good faith to resolve the discovery issue without
Court intervention; if the non-disclosure was substantially justified; or other circumstances made
an award of expenses unjust. Imposition of 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 FortySecond 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 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.
4
Mid-American 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 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 using lodestar method), 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.
II.
Application
Plaintiff here is not claiming expenses other than attorney’s fees incurred in making this
motion. Defendants do not object to the rate or the rough apportionment of 50% for services
5
with mixed issues for which plaintiff prevailed and for which he did not. They object to the time
expended by plaintiff’s counsel getting familiar with the file, a total of 15.9 hours incurred in
May and June 20, 2014 for a total of $1,548.00 at both rates (see Docket No. 186, Kolar Decl.,
Ex. A), roughly half of plaintiff’s present claim.
File review by plaintiff’s new counsel was essential to determine, first, if further
discovery was necessary; second, what issues remain outstanding from plaintiff as pro se
demanded (potentially to be sought in a motion to compel or pursuing then pending motions to
compel); third, which Orders to compel were complied with, before seeking leave to reopen
discovery. Certain open discovery matters, such as the means for plaintiff to depose witnesses
while incarcerated, were raised in motions to compel when counsel was appointed. As
previously stated (see Docket No. 185, Order of Aug. 5, 2014, at 7), appointment of counsel was
to assist plaintiff in conducting and completing his discovery. Upon that appointment, the
review of the docket and the determination of what discovery was needed justify the motion
expense when defendants failed to accede to further discovery.
The Monroe County defendants alternatively argue that they were within their rights to
insist that the maximum number of Interrogatories were already asked by plaintiff and not agree
to more (see Docket No. 187, Monroe County Defs. Atty. Decl. 13), although those numbers
were reached while plaintiff was pro se. But with the appointment of counsel, defendants should
have known that discovery would be reopened and, where limits under the rules needed to be
exceeded, that leave for such relief would be sought.
Recovery of plaintiff’s expenses here is justified. The full amount claimed, $3,663.00, is
a reasonable amount. The next issue is which party will pay this expense.
6
III.
Apportionment of Liability among Parties and Counsel
A. Liability of Group of Defendants
This case presents two levels of apportionment of the expense award. First, this Court
must apportion between the Monroe County defendants and the Rochester defendants as a group.
There is no indication that any particular defendant within either group is more liable for the
discovery produced in this action. Also, as a practical matter, any award imposed here would be
indemnified by the municipal parties within these defense groups. Hence, this Court will
consider the groups.
The Monroe County defendants alternatively argue that, if at all liable, they are
responsible only for a fraction of plaintiff’s motion expenses and that Rochester defendants are
responsible for their share (Docket No. 187, Monroe County Defs. Atty. Decl. at page 4,
“Wherefore” Cl. ¶ C)). The Monroe County defendants imply that the Rochester defendants are
liable for more than half of the expenses, but do not state a proportion or an amount the
Rochester defendants owe. Plaintiff merely argues that each group of defendants is equally
liable (see Docket No. 186, Kolar Decl. ¶ 5). Again, the Rochester defendants have not
responded to this motion or fee application.
With this guidance from the parties, this Court has to apportion the parties’ liability.
While the Monroe County defendants point to the procedural history and plaintiff’s focus on the
Rochester defendants in his motions, most of those motions were filed when the Monroe County
defendants had pending their motion for judgment on the pleadings and had successfully stayed
discovery from them. When the County’s dispositive motion was disposed of and claims
remained, discovery resumed from those defendants. Both sets of defendants then responded to
7
plaintiff’s pro se demands raising various objections and making limited answers. But the issue
is attributing liability after plaintiff had counsel.
On the scant record before this Court, the most equitable method would to equally
apportion liability between the Rochester defendants and the Monroe County defendants.
The Rochester defendants’ silence for this motion and fee application should not be the basis for
imposing most of the responsibility on them. No party presents any other apportionment, save
equal division by plaintiff or no liability by the Monroe County defendants. Absent anything
more that would suggest a different proportion, equal division among the defendant groups is
appropriate here.
B. Liability of Attorneys and Clients
The second apportionment is between the clients and their counsel, as countenanced by
Rule 37(a)(5) attributing liability between the party and its counsel, see Fed. R. Civ.
P. 37(a)(5)(A). No party has addressed whether counsel or the clients are more responsible. The
record here does not indicate that the attorneys acted to compel this motion practice rather than
the clients or vice versa. Again, since counsel are also employees of the municipalities they
represent, any award imposed against them would be paid by the municipal clients. Thus, the
award of plaintiff’s expenses will be attributed to the clients.
CONCLUSION
For the reasons stated above, plaintiff’s application (Docket No. 186) to recover his
motion expenses is granted. Plaintiff’s claim of $3,663.00 is a reasonable expense. The
Monroe County defendants and the Rochester defendants are equally liable for these expenses,
and not their respective counsel.
8
So Ordered.
/s/ Hugh B. Scott
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
October 16, 2014
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?