Kirby et al v. O'Dens et al
Filing
162
OPINION AND ORDER by Magistrate Judge Paul J Cleary ; granting in part 124 Motion for Attorney Fees (kjp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
ELBERT KIRBY, JR., et al.,
Plaintiffs,
v.
DAVID M. O’DENS, et al.,
Defendants.
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Case No. 14-CV-388-GKF-PJC
OPINION AND ORDER
Before the Court for determination is the Defendants’ Second Motion for
Attorneys’ Fees (“Defendants’ Motion”). [Dkt. No. 124]. Plaintiffs have filed their
Objection to Defendants’ Motion. [Dkt. No. 146]. For the reasons set forth below, the
motion is GRANTED IN PART.
Defendants’ request for attorneys’ fees stems from the Court’s rulings on three
discovery motions: (1) Denying Plaintiffs’ Motion for Protective Order [Dkt. No. 80]; (2)
Granting Defendants’ Fifth Motion to Compel [Dkt. No. 93]; and, (3) Denying Plaintiffs’
Fourth Motion to Compel [Dkt. No. 94]. The basis for the Court’s rulings on these
motions is set forth in its May 14, 2015 Order and Opinion [Dkt. No. 118].
Defendants seek reimbursement of $4,509 for fees incurred in prosecuting their
Motion to Compel and defending Plaintiffs’ motions. This is based on 16.7 hours of
work incurred by attorney David M. O’Dens at an hourly rate of $270. This hourly rate is
$190 less than O’Dens’ normal billing rate. [Dkt. No 124, Declaration of David M.
O’Dens, ¶¶ 9-10]. In their Response [Dkt. No. 146], Plaintiffs challenge neither the
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number of hours claimed by O’Dens, nor the hourly billing rate. Instead, Plaintiffs have
limited their opposition to an attorney fee award to the issue of legal entitlement.
DISCUSSION
Much of Plaintiffs’ Objection to Defendants’ Motion is based on the so-called
“American Rule” which holds that “the prevailing litigant is ordinarily not entitled to
collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v.
Wilderness Societ, 421 U.S. 240, 247 (1975). This Rule does not apply, however,
where a specific statute or contract provision provides a basis for attorney-fee shifting.
Plaintiffs’ reliance on the American Rule is inapposite here, however, because
the fees at issue are not claimed by Defendants as the prevailing parties in this lawsuit.
There are no prevailing parties at this juncture. Rather, Defendants seek an award of
fees pursuant to the discovery provisions of the Federal Rules of Civil Procedure as
enacted by Congress.
Fed. R. Civ. P. 37 provides the statutory basis for a fee award here. That Rule
provides:
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted--or if the disclosure or requested
discovery is provided after the motion was filed--the court must, after
giving an opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees. But the court must not
order this payment if:
(i)
the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii)
the opposing party's nondisclosure, response, or objection was
substantially justified; or
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(iii)
other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may issue
any protective order authorized under Rule 26(c) and must, after giving
an opportunity to be heard, require the movant, the attorney filing the
motion, or both to pay the party or deponent who opposed the motion
its reasonable expenses incurred in opposing the motion, including
attorney's fees. But the court must not order this payment if the motion
was substantially justified or other circumstances make an award of
expenses unjust.
(C) If the Motion Is Granted in Part and Denied in Part. If the motion is
granted in part and denied in part, the court may issue any protective
order authorized under Rule 26(c) and may, after giving an opportunity
to be heard, apportion the reasonable expenses for the motion.
Fed. R. Civ. P. 37(a)(5).
Under this provision, where a Motion to Compel is granted, the Court must award
fees unless one of three exceptions applies. These exceptions are set forth in subsections (a)(5)(A)(i)-(iii) of the Rule. Plaintiffs have not argued any of these exceptions,
and the Court’s review of the record indicates that none of them applies. Accordingly,
an award of fees to Defendants for prevailing on their Motion to Compel is required by
the Rule.
Similarly, where a party brings a motion to compel or for protective order and that
motion is denied, an award of fees is required under section (a)(5)(B). Clearly, these
provisions provide a statutory basis for an award or attorney fees related to discovery
motions falling within the scope of Rule 37(a)(5). Thus, Plaintiffs’ arguments concerning
the American Rule or a lack of statutory authority for an award of fees are fatally flawed.
Plaintiffs also argue that a Court’s “inherent power” to award attorney fees is
limited; however, the Court is not relying on inherent authority in this case. The
authority to make an award of fees is rooted in Rule 37, not the Court’s inherent power.
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Plaintiffs also make seven broad, unsupported arguments as to why attorney
fees are inappropriate. Several of these concern whether O’Dens can seek an award of
fees when he is a party to the litigation. It has been held that pro se parties who are
attorneys cannot recover fees under 42 U.S.C. § 1988. Kay v. Ehrler, 499 U.S. 432
(1991). The rationale of the decision in Kay is that all litigants should be encouraged to
obtain independent professional counsel. “A rule that authorizes awards of counsel
fees to pro se litigants—even if limited to those who are members of the bar—would
create a disincentive to employ counsel whenever such a plaintiff considered himself
competent to litigate on his own behalf. The statutory policy of furthering the successful
prosecution of meritorious claims is better served by a rule that creates an incentive to
retain counsel in every such case.” 499 U.S. 438. See also, Debry v. Noble, 1 F.3d
1249, *5-*6 (10th Cir. 1993) in which the Tenth Circuit noted that the opinion in Kay
“assumes the existence of a paying relationship between an attorney and a client, and
restricting awards to litigants engaged in such a relationship would encourage litigants
to hire independent counsel and thereby increase the quality of litigation.” The
reasoning of Kay has been applied in other contexts besides § 1988. E.g., Watkins v.
Manchester, 559 N.W.2d 81, 84-86 (Mich.App. 1996) (vacating a mediation sanction
award of attorney fees to a pro se attorney).
Here, O’Dens represents three Defendants: himself, his law firm, SettlePou
(“SettlePou”), and Ocwen Loan Servicing LLC (“Ocwen”). The last two entities are
corporations that cannot appear in Court pro se. See, Baker & Hostetler LLP v. U.S.
Dept. of Commerce, 473 F.3d 312, 324 (D.C.Cir. 2006). This holding is expressly set
forth in the Local Rules of this Court: “Parties who are not natural persons may not
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appear pro se.” LCvR17.1. While O’Dens may not be able to seek fees for his efforts
on his own behalf, his representation of the corporate entities does not fall within the
prohibition of Kay. SettlePou and Ocwen are entitled to compensation under Rule 37
for the fees they incurred as a result of Plaintiffs’ conduct. From a review of the
discovery requests and issues contested in the underlying motions, it appears that onethird of the material at issue was related solely to O’Dens as a party to this litigation.
For this reason, the fees sought in Defendants’ Motion will be reduced by one-third to
reflect O’Dens’ role as a pro se litigant.
ACCORDINGLY, Defendants’ Motion is GRANTED IN PART. Pursuant to Rule
37(a)(5), Defendants Ocwen LLC and SettlePou are awarded fees in the amount of
$3006.00, which constitutes two-thirds of the total fees sought in Defendants’ Motion.
This sum is awarded against Plaintiffs Elbert Kirby, Jr., and Caleb Meadows, jointly and
severally.
IT IS SO ORDERED this 17th day of July 2015.
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