Waubay Lake Farmers Association et al v. BNSF Railway Company
ORDER granting in part and denying in part 51 Motion for Attorney Fees. Signed by U. S. District Judge Roberto A. Lange on 2/6/14. (CMS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WAUBAY LAKE FARMERS
ASSOCIATION and HOMEOWNERS
AND BUSINESS ASSOCIATION OF
W AUBA Y LAKE'S WATERSHED as
representative of the class herein
BNSF RAIL WAY COMPANY, Fort
FEB 06 20'~
ORDER GRANTING IN PART
AND DENYING IN PART
MOTION FOR COSTS AND
Having held a hearing on November 1,2013, on pending motions, this Court issued an
Order on Pending Motions on November 4, 2013, Doc. 49, granting in part Defendant's Motion
to Compel Discovery. In the Order on Pending Motions, this Court permitted Defendant to
submit an affidavit and motion requesting sanctions under Rule 37 ofthe Federal Rules ofCivil
Procedure. Doc. 49.
Thereafter, Defendant filed a motion and submitted an affidavit seeking $14,710.00 as
sanctions. Doc. 51. This Court in an Order for Response to Motion for Costs and Attorney's
Fees, Doc. 56, directed Plaintiffs to respond and noted "the request for $14,71 0.00 [as sanctions]
struck the Court as unreasonable and excessive." Doc. 56. In Plaintiffs' Response to Motion for
Costs and Attorneys Fees, Doc. 57, suggests a range of $2,000 to $4,000 for the Court to
consider as a sanction, and makes clear, as was made clear at the hearing, that the dereliction
from the Plaintiffs in discovery was attributable to Plaintiffs' counsel and not the party Plaintiffs.
Rule 37(a)(5)(A) ofthe Federal Rules ofCivil Procedure governs the matter ofsanctions.
Here, Defendant's motion to compel was granted in part, and this Court deemed Defendant
entitled to some sanctions against Plaintiffs whose non-disclosure necessitated the motion. The
amount of sanctions lies in the discretion of this Court. 8B Charles Alan Wright, Arthur R.
Miller & Richard L. Marcus, Federal Practice & Procedure, § 2284 (3d ed. 2010). Indeed, while
Rule 37 reads that the Court "must ... require the party ... whose conduct necessitated the
motion ... to pay the movant's reasonable expenses incurred in making the motion," the Court
also "must not order this payment if ... other circumstances make an award of expenses unjust."
Fed. R. Civ. P. 37(a)(5)(A). If, as here, "the motion is granted in part and denied in part, the
court may ... apportion the reasonable expenses for the motion." Fed. R. Civ. P. 37(a)(5)(C);
see also Comiskey v. JFTJ Corp., 989 F.2d 1007,1011-12 (8th Cir. 1993).
"'The starting point in determining attorney fees is the lodestar, which is calculated by
multiplying the number ofhours reasonably expended by the reasonable hourly rates.''' Baranski
v. United States, 283 F.R.D. 520, 527 (E.D. Mo. 2012) (employing the lodestar where a party
sought fees pursuant to Rule 37 of the Federal Rules of Civil Procedure) quoting Fish v. St.
Cloud State Univ., 295 F.3d 849,851 (8th Cir. 2002)); see also Kirschenman v. Auto-Owners
Ins., No. CIV. 09-4190-KES, 2012 WL 1493833, at *3 (D.S.D. Apr. 27, 2012). "Under this
method, the district court multiplies the reasonable number of hours for the work performed by
a reasonable hourly rate." Kirschenman, 2012 WL 1493833, at *3. The Court will exclude hours
that were not expended reasonably and the burden is on the party seeking the award to justify the
hours worked and the rate claimed. Branaski, 283 F.R.D. at 527. The Court may increase or
decrease the lodestar figure based on the "factors listed in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974)[,]"1 Shakopee Mdewakanton Sioux Cmty. v. City of Prior
Lake. Minn., 771 F.2d 1153, 1160 (8th Cir. 1985), but these factors may be "subsumed within
the initial calculation of hours reasonably expended at a reasonable hourly rate[,]" Hensley v.
Eckerhart, 461 U.S. 424,455 (1983).
Plaintiffs object to the amount requested by Defendants and this Court agrees that
Defendant's request of$14, 710.00 as fees and expenses for bringing this motion to compel is not
reasonable under these circumstances. According to Defense counsel's affidavit, Defense
counsel billed 51.6 hours for three attorneys in bringing the motion to compel. Doc. 52. The
issues in the motion to compel were not complicated, the motion was granted in part, and the
hearing on the motion was combined with a hearing on another matter in the case. Here, in
considering all ofthe circumstances, the Court concludes that the reasonable amount ofsanctions
to be $2,942.00.
Therefore, it is hereby
ORDERED that Defendant's Motion for Costs and Attorney's Fees, Doc. 51, is granted
in part and denied in part and that Plaintiffs or Plaintiffs' counsel pay to Defendant the amount
of $2,942.00 as sanctions under Rule 37 forthwith and no later than fourteen days after entry of
I The twelve factors listed in Johnson, 488 F.2d 714 are: (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client
or the circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and
length ofthe professional relationship with the client; and (12) awards in similar cases. Id. at 717-19
Dated February L
BY THE COURT:
UNITED STATES DISTRICT JUDGE
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