Page et al v. Hertz Corporation et al
Filing
67
ORDER granting in part and denying in part Hertz's request for attorneys fees in connection with its 42 MOTION for Sanctions or in the Alternative, to Compel and to Extend Expert Disclosure Deadlines. Signed by US Magistrate Judge Veronica L. Duffy on 01/20/12. (Duffy, Veronica)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GARY W. PAGE and LORIE PAGE,
Plaintiff,
vs.
HERTZ CORPORATION;
HERTZ RENT A CAR, and
KAREN S. KNIPPLE,
Defendants.
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CIV. 09-5098
ORDER GRANTING IN PART
AND DENYING IN PART
HERTZ’S REQUEST FOR
ATTORNEY’S FEES
INTRODUCTION
This matter is before the court pursuant to a complaint alleging
negligence and strict liability by plaintiffs Gary and Lorie Page, husband and
wife, against defendants arising out of an August 6, 2009, motor vehicle
accident in South Dakota. See Docket No. 1. Previously, this court granted in
part and denied in part a motion for sanctions or, in the alternative, to compel,
filed by Hertz Corporation and Hertz Rent A Car (collectively “Hertz”). See
Docket No. 60. Now presented for the court’s determination is the matter of
the attorneys fees to be awarded to Hertz as a result of their partially
successful motion.
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FACTS
The facts pertinent to the motion pending before this court are as follows.
Gary and Lorie Page reside in Hillsdale, Ontario, Canada. On August 6, 2009,
Gary Page was operating a motorcycle on Interstate 90 near Piedmont, South
Dakota, when he was involved in an accident with Karen Kipple, who was
operating a motor vehicle owned by Hertz. See Docket No. 1 at ¶¶ 10-11. As a
result of the accident, Mr. Page asserts that he suffered and sustained
numerous injuries, among which were a permanent traumatic brain injury.
See Docket No. 53 at pages 27-28. Mr. Page’s expert, Dr. Kurzman, issued an
opinion supporting this latter assertion of injury.
By mutual agreement, Hertz, arranged for Mr. Page to undergo an
independent medical neuropsychological evaluation (“IME”) with an expert
chosen by Hertz, Dr. Gregory Thwaites, in Colorado. The IME with
Dr. Thwaites was to take place on May 27, 2011. See Docket No. 53 at page
31. Hertz paid for Mr. Page’s transportation and lodging in connection with
this trip.
Although Mr. Page reported to Dr. Thwaites’ office for the IME on May 27,
he left shortly after making contact with Dr. Thwaites and refused to undergo
the IME. Mr. Page thereafter refused requests by Hertz to reschedule the IME
with Dr. Thwaites. After unsuccessfully exploring different options to obtain
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the IME, Hertz filed its motion for sanctions or, in the alternative, to compel.
See Docket No. 42.
This court granted Hertz’s motion in part and denied it in part. See
Docket No. 60. The court granted Hertz’s request that Mr. Page submit to an
IME with Dr. Thwaites at Mr. Page’s own expense and to reimburse Hertz for
the $4,750.00 Dr. Thwaites charged Hertz for the aborted May 27, 2011,
examination. Id. The court ordered Mr. Page to turn over in discovery the raw
data from his own neuropsychological assessment by his own doctor,
Dr. Kurzman. Id. The court denied Hertz’s request to dismiss the Pages’
complaint or to bar the Pages from introducing at trial evidence of Mr. Page’s
brain injury. Id.
As sanctions for not providing the requested discovery, the court
indicated it would entertain awarding reasonable attorney’s fees to Hertz for
having to bring the motion. Id. Hertz has now filed affidavits in support of its
request for attorneys fees as follows: $2,012.50 for attorney Gene Bushnell,
representing 11.5 hours of his time at a rate of $175 per hour; $7,470.00 for
attorney Stephen Hoffman, representing 49.8 hours of his time at a rate of
$150 per hour; and $727.50 for paralegal Victoria Kelner, representing 9.7
hours of her time at a rate of $75 per hour. See Docket Nos. 64, 65, and 66.
The total in attorney’s fees and paralegal’s fees requested by Hertz is $10,210.
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Although the court afforded plaintiffs the opportunity to oppose Hertz’s
request for attorneys fees, plaintiffs have not done so. Hertz filed its affidavits
in support of its request for attorneys fees on December 5, 2011. Id. The
Pages had 14 days to oppose those affidavits by lodging objections to the
hourly rate, the time spent, or any factual matter. See Docket No. 60. As of
the writing of this opinion, the Pages have not so responded.
DISCUSSION
A.
Lodestar Method of Determining a Reasonable Award of Attorney’s
Fees
The court must evaluate Hertz’s request for attorney’s fees to determine
whether it is reasonable, even in the absence of objection by the opposing
party. In determining a reasonable award of attorney’s fees under Fed. R. Civ.
P. 37, the court begins by figuring the lodestar, which is calculated by
multiplying the number of hours reasonably expended by the reasonable
hourly rates. Finley v. Hartford Life & Accident Ins. Co., 249 F.R.D. 329, 33233 (N.D. Cal. 2008); Tequila Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 248
F.R.D. 64, 68 (D.D.C. 2008); Creative Resources Group of New Jersey, Inc. v.
Creative Resources Group, Inc., 212 F.R.D. 94, 103 (E.D.N.Y. 2002); Kayhill v.
Unified Gov’t. of Wyandotte County, 197 F.R.D. 454, 459 (D. Kan. 2000); and
Trbovich v. Ritz-Carlton Hotel Co., 166 F.R.D. 30, 32 (E.D. Mo. 1996). The
burden is on the moving party to prove that the request for attorneys’ fees is
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reasonable. Tequila Centinela, S.A. de C.V., 248 F.R.D. at 68; Creative
Resources Group, Inc., 212 F.R.D. at 103; Kayhill, 197 F.R.D. at 459.
B.
Reasonable Hourly Rate
The reasonable hourly rate is usually the ordinary rate for similar work
in the community where the case is being litigated. Tequila Centinela, S.A. de
C.V., 248 F.R.D. at 68 (citing Laffy v. Northwest Airlines, Inc., 746 F.2d 4, 16
(D.C. Cir. 1984)) (hourly rate must be sufficient to attract competent counsel,
but not so excessive as to produce a windfall, and generally must be in line
with rates charged by other attorneys of comparable skill, reputation, and
ability within the community.) In this case, Hertz has submitted a request for
attorney’s fees based on a normal hourly rate of $175.00 per hour and $150
per hour for attorneys Gene Bushnell and Stephen Hoffman, respectively, and
$75.00 per hour for paralegal Victoria Kelner.
Hertz has not submitted affidavits attesting to the the prevailing hourly
attorney rates in the District of South Dakota. Instead, Hertz merely points out
court decisions approving rates of $250 to $200 per hour. The court can take
judicial notice of the prevailing rates in this district based on its own
knowledge of prevailing rates here. See Creative Resources Group, Inc., 212
F.R.D. at 103-104 (holding that “it is within the judge’s discretion to determine
reasonable fees based on his or her knowledge of prevailing community rates”).
Experienced, partner-level trial counsel in this community have received
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awards of attorneys fees ranging from $200.00 per hour to $225.00 per hour in
lawsuits requiring highly specialized knowledge. See Cottier v. City of Martin,
Civ. No. 02-5021, Docket No. 469, page 6 (D.S.D. March 25, 2008); Bone Shirt
v. Hazeltine, Civ. No. 01-3032, Docket No. 411, page 4 (D.S.D. June 22, 2006).
In other cases where the hourly rate is limited by statute, courts have awarded
fees based on an hourly rate of $150 per hour. See Kahle v. Leonard, Civ. No.
04-5024, Docket No. 259 (D.S.D. July 14, 2008). In awards of attorneys fees
as sanctions for motions to compel, the hourly rates of attorneys’ fees have
ranged from $145 per hour to $250 per hour. See Heil v. Belle Starr Saloon &
Casino, Inc., Civ. No. 09-5074, Docket No. 68 (D.S.D.); Beyer v. Medco Ins.
Group, Civ. No. 08-5058, Docket No. 65 (D.S.D.); Howard Johnson Internat’l,
Inc. v. Inn Development, Inc., Civ. No. 07-1024, Docket No. 73 (D.S.D.); Oyen
v. Land O’Lakes Inc., Civ. 07-4112, Docket Nos. 56, 62 (D.S.D.). The hourly
rate of $75.00 per hour for paralegal time has also been approved. See Kale,
2008 WL 2776494 *4 (D.S.D.); Cottier v. Martin, 2008 WL 2696917 * 5
(D.S.D.).
The court concludes on the basis of its own knowledge of prevailing rates
in the District of South Dakota and also based on recent awards of attorney’s
fees that the hourly rates requested for Mr. Bushnell, Mr. Hoffman, and
Ms. Kelner’s time are reasonable hourly rates in this district.
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C.
Reasonable Hours
The court must also determine whether the number of hours spent by
Hertz’s attorneys was reasonable. Some courts have held that 30 and 21 hours
spent in researching and drafting a discovery motion were a disproportionate
amount of time for the nature of the dispute. See Criterion 508 Solutions, Inc.
v. Lockheed Martin Services, Inc., 255 F.R.D. 489, 496 (S.D. Ia. 2008) and
Foxley Cattle Co. v. Grain Dealers Mut. Ins. Co., 142 F.R.D. 677, 680 (S.D. Ia.
1992).
In this district, this court has approved requests for attorneys fees
ranging from $1,041.45 to $1,509.97 for run-of-the-mill motions to compel.
See Heil, Civ. No. 09-5074, Docket No. 68 ($1,041.45 awarded); Howard
Johnson Internat’l. Inc., Civ. No. 07-1024, Docket No. 73 ($1,453.50 awarded);
Oyen, Civ. No. 07-4112, Docket Nos. 56 and 62 ($1,509.97 awarded to
defendant on defendant’s motion to compel; $1,140.75 awarded to plaintiff on
plaintiff’s motion to compel).
In one extraordinary case in which the plaintiff made a detailed motion to
compel involving numerous issues, the court granted that motion, and then
plaintiff had to make a second motion to compel when the defendant refused to
comply with the court’ previous order, the court awarded $13,480 in attorneys’
fees. See Beyer, Civ. No. 08-5058, Docket No. 65 (D.S.D.).
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Here, Hertz presented really only two issues in its motion to compel, and
neither issue was complex or difficult. Those issues were: should Gary Page
be required to undergo an IME with the doctor selected by Hertz, and should
the Pages be required to turn over to Hertz their own neuropsychologist’s raw
data. A related issue was what sanctions, if any, should be imposed as a result
of Gary Page’s refusal to undergo the IME with Dr. Thwaites.
Hertz requests compensation for a total of 71 hours on its motion to
compel. Mr. Bushnell requests 11.5 hours. Of these 11.5 hours, Mr. Bushnell
requests 4.8 hours in discussions with the Pages’ counsel trying to make
arrangements for another IME short of filing the motion to compel that was
ultimately filed. This time was not duplicated by either Mr. Hoffman or
Ms. Kelner. It appears directly related to Gary Page’s refusal to undergo the
IME. Accordingly, the court grants these hours.
However, Mr. Bushnell also requests 2.2 hours for conversations or
writings exchanged between himself and his client. These are not directly
related to Mr. Page’s actions. Mr. Bushnell would have been required to inform
his client as to his actions whether the IME took place or not. The court will
not require the Pages to pay Mr. Bushnell for simply carrying out his duty of
keeping his client informed.
Mr. Bushnell also requests 4.5 hours for reviewing the briefs that
Mr. Hoffman researched and drafted. This is duplicative. It also seems
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unnecessary as Mr. Hoffman is highly intelligent, having graduated second in
his law school class, was a federal law clerk for three years, and has been
writing briefs for the Costello Porter law firm for 24 years. See Docket No. 65,
¶¶ 1-4.
Mr. Hoffman himself requests 20.9 hours for researching the motion, and
28.9 hours for drafting two briefs totaling 34 pages. The total spent by
Mr. Hoffman in strictly researching and writing is 49.8 hours. This, to the
court, seems excessive. Just the drafting time alone equates to 51 minutes per
page of the briefs.
The burden is on Hertz to prove that its request for attorneys’ fees is
reasonable. Tequila Centinela, S.A. de C.V., 248 F.R.D. at 68; Creative
Resources Group, Inc., 212 F.R.D. at 103; Kayhill, 197 F.R.D. at 459. In
reviewing prior similar motions, the court notes that attorneys have spent
anywhere from 4.8 hours to 10.9 hours on routine motions to compel. See
Heil, Civ. No. 09-5074, Docket No. 68; Howard Johnson Internat’l. Inc., Civ.
No. 07-1024, Docket No. 73; Oyen, Civ. No. 07-4112, Docket No. 56.
Hertz argues that the time spent on the research was justified because of
the “relative dearth of authority regarding the court’s authority to impose
sanctions where no order pursuant to rule 35 had been entered.” See Docket
No. 65, at ¶ 10. The court acknowledges the dearth of authority referenced by
Hertz, but still finds the number of hours spent by Mr. Hoffman on research
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and writing this discovery motion, especially given Mr. Hoffman’s long
experience as his firm’s specialist in researching and writing briefs, to be
unreasonable. Giving Hertz the benefit of the doubt, the court finds that a
reasonable number of hours to have spent on its motion to compel by
Mr. Hoffman would be 20 hours.
In arriving at this number, the court takes into account the fact that
Hertz was only partially successful in its motion to compel, the court having
denied the most draconian sanctions requested by Hertz. In addition, Mr. Page
has already paid a sanction for his refusal to undergo the Thwaites IME by
being required to reimburse Hertz for the $4,750.00 fee charged by
Dr. Thwaites for the aborted appointment. See Docket No. 60.
Mr. Hoffman also asserts that he spent much time trying to ascertain the
conversations that had occurred between the parties leading up to the
Thwaites IME so as to be able to rebut the factual allegations asserted by the
Pages in opposition to Hertz’s motion to compel. However, these conversations
appear to have all taken place in the form of exchanged e-mails, which should
not have posed a difficult burden to find. Furthermore, it appears that
paralegal Ms. Kelner performed the lion’s share of the task of locating
these emails.
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The activities of paralegal Ms. Kelner appear to be necessary and not
duplicative of the activities of either Mr. Bushnell or Mr. Hoffman. Further, the
number of hours for each task appears reasonable.
CONCLUSION
Based on the forgoing discussion, it is hereby
ORDERED that Hertz’s request for attorney’s fees is granted in part and
denied in part. The Pages shall pay to Hertz within 30 days the following sum
in attorney’s fees:
Mr. Bushnell
$ 840.00
(4.8 hours at $175 per hour)
Mr. Hoffman
$3,000.00
(20 hours at $150 per hour)
Ms. Kelner
$
(9.7 hours at $75 per hour)
Subtotal
$4,567.50
SD Sales Tax
$
TOTAL
$4,841.55
727.50
274.05
(6%)
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. See Fed. R. Civ. P.
72(a); 28 U.S.C. § 636(b)(1)(A). Failure to file timely objections will result in
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the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
Dated January 20, 2012.
BY THE COURT:
/s/
Veronica L. Duffy
VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE
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