Meyer v. Smith & Nephew, Inc.

Filing 88

REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that sanctions be imposed in the amount of $20,837.05. Signed by Magistrate Judge Joe Brown on 9/13/12. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHARLES MICHAEL MEYER,

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Plaintiff
v.
SMITH & NEPHEW, INC.,
Defendant
TO:

No. 3:11-0402
Judge Nixon/Brown

THE HONORABLE JOHN T. NIXON
REPORT AND RECOMMENDATION
This matter was set for oral argument at 10:00 a.m. on

September

11,

2012.

At

the

appointed

Plaintiff called in and was available.

hour

counsel

for

the

Counsel for the Defendant

did not call in and, accordingly, the Magistrate Judge believes
that he has waived his oral argument on the issue.1
The Magistrate Judge has carefully considered the briefs
of the parties on this matter (Docket Entries 43, 49 and 54).2

For

the reasons stated below the Magistrate Judge recommends that the
motion (Docket Entry 43) for fees and expenses be GRANTED in part.
BACKGROUND
Discovery has not proceeded smoothly in this matter.

On

January 19, 2012 (Docket Entry 15), the Magistrate Judge, following
1

The Magistrate Judge has now been advised counsel for the Defendant
did not put the matter on his calendar and was out of contact with his
office when the Magistrate Judge’s office tried to reach him.
2

The Magistrate Judge notes that throughout the pleadings
Defendant’s counsel uses the title “Magistrate.” Since 1991 the title
has been “Magistrate Judge” (28 U.S.C. § 631). If counsel wishes to
shorten the title it is normally shortened to “Judge.” One does not
refer to a Bankruptcy Judge as “Bankruptcy” nor if one were in the
military would one refer to a Lt. Colonel as “Lieutenant.”

a telephone conference, directed the parties to schedule necessary
Rule 30(b)(6) depositions on or before March 15, 2012.

The

deposition did not occur within the time allotted and the Plaintiff
filed a motion for default judgment or striking of the Defendant’s
defense (Docket Entry 16).

The Magistrate Judge initially denied

this motion on the grounds that the parties have not conducted a
telephone conference with him about the matter, but did note that
the motion raised serious concerns.

The Magistrate Judge set a

telephone conference to discuss the matter (Docket Entry 18).
Defendant was specifically cautioned that if the allegations in the
motion for sanctions (Docket Entry 16) were accurate and there was
no satisfactory explanation, sanctions would be considered.

Both

sides briefed and perhaps over-briefed the issue (Docket Entries
20, 21, and 22).
In granting a motion for leave to file a reply the
Magistrate Judge specifically noted his concern over the tone of
the pleadings and pointed out his concern that the Defendant’s
explanation was somewhat wide of the mark and that the Defendant
had not properly secured and prepared a Rule 30(b)(6) witness.
Following additional telephone conferences the Magistrate
Judge granted sanctions on March 28, 2012 (Docket Entry 25).

The

Magistrate Judge specifically found that the Defendant had not
complied with the Magistrate Judge’s earlier order of Docket Entry
15, concerning the Rule 30(b)(6) deposition.

The Magistrate Judge

awarded as a sanction reasonable attorneys’ fees and costs for
preparing a motion for sanctions and reply (Docket Entries 16 and
24), as well as providing that the Defendant will bear the costs
2

for the Rule 30(b)(6) deposition of the Defendant.
appeal of this order.

Subsequently, the Plaintiff filed the

present motion for attorneys’ fees and
43).

There was no

and expenses (Docket Entry

Defendant filed a response in opposition to the motion for

attorneys’ fees (Docket Entry 49), and Plaintiff filed a reply
(Docket Entry 53).

In addition, as noted above, the Magistrate

Judge scheduled the matter for oral argument (Docket Entry 72).
The motion for sanctions was referred by Judge Nixon to
the undersigned for a report and recommendation (Docket Entry 56).3
Unfortunately, the Defendant in this case has had other
difficulties in complying with discovery requirements (see Docket
Entries 86 and 87).

However, they are not part of this report.
LEGAL DISCUSSION

As an initial matter the Magistrate Judge finds that the
hourly rates requested by Plaintiff for lead counsel and associate
counsel are reasonable. They are supported by affidavit and in the
Magistrate Judge’s view are appropriate for the Nashville area.
The

objections

to

the

hourly

rates

by

the

Defendant

is

not

supported by affidavit and many of the cases cited are several
years old.
The case law in this matter is rather straightforward.
Plaintiff’s

counsel

is

entitled

to

a

reasonable

hourly

rate

multiplied by the number of hours reasonably spent on the matter.
Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006).

3

Both

In view of Judge Nixon’s order, the Magistrate Judge has prepared
a report and recommendation rather than simply deciding this with an
order.

3

sides spent a lot of time arguing horn book law.

The critical

issue is an analysis of what constitutes reasonable time spent on
this matter.
Plaintiff’s counsel has claimed a total of 42.25 hours in
connection
$11,112.50.

with

the

sanctions

motion

itself

for

a

total

of

After due consideration the Magistrate Judge will

reduce this amount by eliminating the $750 claimed for February 14,
2012, (Docket Entry 43-2, p. 6). The Magistrate Judge will further
reduce the amount claimed for the preparation of the motion and for
the reply by a total of $2,500.

See Coulter v. Tennessee, 805 F.2d

146 (6th Cir. 1986). The Magistrate Judge believes that this matter
was over-briefed. The claim for $11,112.50 is therefore reduced by
a total of $3,250 for a new total of $7,862.50.
The Plaintiff has claimed a total for fees and expenses
of

taking

the

Rule

30(b)(6)

deposition

of

$13,974.55.

The

Magistrate Judge had previously awarded the costs of the actual
taking of the Rule 30(b)(6) of the Defendant to include reasonable
attorneys’ and court reporter’s fees (Docket Entry 25).
The Magistrate Judge has reviewed the time and expenses
claimed by Plaintiff’s counsel in preparing for and taking the
deposition

of

the

Rule

30(b)(6)

witness

for

reasonableness.

Although the Defendant contends that the preparation time is
excessive there is no real argument as to why preparation for the
deposition of the major Rule 30(b)(6) witness would only need six
hours. If Plaintiff’s counsel had limited their preparation to six
hours they might well have been guilty of malpractice.

However,

the Magistrate Judge believes that the amount of time claimed for
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preparing the memorandum in support of the motion for award of
attorneys’ fees and expenses must be limited.
themselves

should

not

litigation side issue.

become

a

separate

The applications in
profit

center

or

a

See Coulter v. Tennessee, 805 F.2d 146 (6th

Cir. 1986).
Accordingly, the Magistrate Judge will limit the expenses
claimed for the preparation of the motion for award of attorneys’
fees for the period May 22 through May 23, 2012, to $1,000.

This

will reduce the total claim for the Rule 30(b)(6) deposition from
$13,974.55 to $12,974.55. The total award recommended is therefore
$20,837.05.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that sanctions be imposed in the amount of $20,837.05.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTERED this 13th day of September, 2012.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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