Chinn v. The Elmwood Franklin School et al

Filing 134

DECISION AND ORDER REGARDING FEES. The Clerk of the Court shall enter judgment in favor of Elmwood Franklin against plaintiff in the amount of $2,000. Signed by Hon. Jeremiah J. McCarthy on 7/17/18. (Court has mailed a copy of this order to plaintiff).(DAZ)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
DECISION AND ORDER
REGARDING FEES

SHELLONNEE B. CHINN,
Plaintiff,
v.

15-CV-00938-FPG-JJM

THE ELMWOOD FRANKLIN SCHOOL, et al.,
Defendant.
_______________________________________
My June 21, 2018 Decision and Order [116], later affirmed by District Judge
Geraci [128], directed defendant Elmwood Franklin School to submit its billing records in
support of its request for attorneys’ fees and costs incurred in connection with its motion to
compel [104]. Elmwood Franklin has now submitted redacted billing invoices totaling $3,319.00
[119].1 In opposing Elmwood Franklin’s request, plaintiff argues that it is “excessive” and
“unreasonable”, and that “defendants’ sole purpose for bringing this motion is to cause financial
harm to plaintiff and NOT to further the litigation or cause the production of documents”.
Plaintiff’s Response [130], ¶¶2, 3.

DISCUSSION
I disagree with plaintiff’s assertion that Elmwood Franklin’s sole purpose is to
harm her. As discussed in my Decision and Order, her failure to respond in any way to Elmwood
Franklin’s discovery demands left it no alternative but to move to compel compliance with those

Although the invoices are addressed to Elmwood Franklin’s insurance carrier rather than
Elmwood Franklin itself, the fact that Elmwood Franklin obtained insurance coverage (for which it
presumably paid a premium) does not bar it from recovering a fee award. Whether that award will be
retained by Elmwood Franklin or passed on to its carrier is a matter to be resolved between them.
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demands. Therefore, under Fed. R. Civ. P. (“Rule”) 37(a)(5)(A), it is entitled to recover its
“reasonable expenses incurred in making the motion, including attorney’s fees”.
Initially, I note that Elmwood Franklin seeks to recover for time spent in
communicating with plaintiff in an attempt to obtain responses to its discovery demands (e.g.,
May 22, 24, 26, and 29, 2018). Such time, which was not devoted to preparing the motion itself,
is not recoverable. See Foxley Cattle Co. v. Grain Dealers Mutual Insurance Co., 142 F.R.D.
677, 681 (S.D. Iowa 1992) (“[d]efendants claim considerable time for various communications
with . . . opposing counsel regarding the underlying discovery request, all of which predate the
motion to compel. Awards of expenses pursuant to Rule 37(a)(2) are limited to expenses
incurred in obtaining the order to compel”).
Elmwood Franklin also seeks recovery for 11.1 hours devoted to preparation of
the motion itself. In considering a fee request, the court may “limit the hours allowed for specific
tasks . . . on the basis of its own assessment of what is appropriate for the scope and complexity
of the particular litigation”. New York State Association for Retarded Children, Inc. v. Carey,
711 F.2d 1136, 1146 (2d Cir. 1983). Considering the scope and complexity of the issues raised
by the motion to compel, I conclude that an award of $2,000 is reasonable compensation for the
cost of making the motion. The clerk of this court shall enter judgment in favor of Elmwood
Franklin against plaintiff in that amount.
SO ORDERED.
Dated: July 17, 2018
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge

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