Bobo v. United Parcel Service, Inc.

Filing 230

ORDER granting 212 Motion for Attorney Fees. Signed by Magistrate Judge Charmiane G. Claxton on 11/21/2012. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

WALLEON BOBO,
Plaintiff,
v.

Case 2:08-cv-02238-SHM-cgc

UNITED PARCEL SERVICE, INC.,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS

Before the Court is Plaintiff Walleon Bobo’s Motion for Attorneys’ Fees and Costs. (Docket
Entry (“D.E.”) #212). The instant motion was referred to the Magistrate Judge for determination.
(D.E. #194).1 For the reasons set forth herein, Plaintiff’s Motion for Attorneys’ Fees and Costs is
hereby GRANTED. The Court finds that Plaintiff should be awarded $82,982.50 in attorneys’ fees
and $4,559.06 in costs to Attorney Luther Sutter and Attorney Lucien Gillham and $62,647.50 in
attorneys’ fees and $2,954.70 in costs to Attorney Andrew Clarke.
I. Introduction
This case arises from allegations of discrimination and retaliation on the basis of age, race,
and military status in violation of Title VII of the Civil Rights Act, the Tennessee Human Rights

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Plaintiff’s initial Motion for Sanctions (D.E. #188) was referred to the Magistrate
Judge for determination. The Court held a hearing on this motion on August 28, 2012 and
entered an Order Granting in Part and Denying in Part Motion for Sanctions on September 12,
2012 (D.E. #200). This Order required Plaintiff to submit an affidavit of proposed fees and
permitted UPS to respond. Plaintiff filed its affidavits as the instant motion.
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Act, the Age Discrimination in Employment Act, and the Uniformed Services Employment and
Reemployment Rights Act. The instant case went to trial before a jury from June 25 until June 27,
2012. On June 27, 2012, Chief United States District Judge Jon P. McCalla declared a mistrial in
the instant case for Defendant United Parcel Service, Inc.’s (“UPS”) failure to produce documents
in discovery. Specifically, although UPS had disclosed a certain investigative file, it was later
updated to add a handwritten statement from David Pendleton and a safety ride form from Carolyn
Mills. The updated file was never disclosed to Plaintiff.
In determining that a mistrial was necessary, the District Court stated that the failure to
produce the complete file was the type of event that “so affects the ability of a party to present their
case effectively and should have been avoided in the discovery process.” The District Court advised
that, “when the opposite party has introduced into the record materials which are materially—that
appear to be materially incomplete, at this stage of the proceeding,” a mistrial is necessary. The
District Court further advised that, while there had been other issues raised during the course of the
trial where a mistrial had been requested, those other issues “could have been addressed in the final
instructions by the court” and “would not have required a mistrial.” However, with respect to the
discovery violation, the District Court found that, “in this particular case under the particular
circumstances, Mr. Pendleton was the cornerstone of the plaintiff’s presentation other than
[Plaintiff’s] testimony. His examination, direct examination was central to the theory of the plaintiff
and a statement by Mr. Pendleton was not disclosed.” Additionally, “a critical part of the case is the
investigation conducted by security . . . . and has now been found to have been incomplete.” For
these reasons, the District Court found that “the plaintiff has been placed at such a disadvantage as
to require justice to rule that there is a basis for a mistrial in this case.”

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Following the declaration of a mistrial, Plaintiff filed his initial Motion for Sanctions. After
holding a hearing on the motion, the Magistrate Judge directed Plaintiff to submit affidavits in
support of any request for attorneys’ fees and directed UPS to respond within seven days of receipt
of Plaintiff’s affidavits. On October 3, 2012, Plaintiff filed the instant Motion for Attorneys’ Fees
and Costs. Plaintiff has requested $116,670.00 in fees and $8,075.17 in costs for Attorney Sutter
and Attorney Gillham and $107,520.00 in fees and $3,304.70 in costs for Attorney Clarke.2 3 UPS
contends that Plaintiff is not entitled to an award of attorneys’ fees and costs and that the requested
amounts are unreasonable.
II. ANALYSIS
Rule 37 of the Federal Rules of Civil Procedure provides that, if a party violates a discovery
order of the Court, “the court must order the disobedient party, the attorney advising that party, or
both to pay the reasonable expenses, including attorneys’ fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of expenses unjust.” Fed.
R. Civ. P. 37(b)(2)(A) & (C).

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Attorney Sutter and Attorney Gillham have separately itemized their attorneys’ fees
(Exhibit C) and costs (Exhibit D). Attorney Clarke has included an itemization of his attorneys’
fees at the conclusion of his Affidavit but lists his requested costs within his Affidavit (Exhibit
E).
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In addition to the requests made in the instant motion, Plaintiff has requested in his
Third Motion for Sanctions and Motion to Alter or Amend Order on Motion for Sanctions (D.E.
#206) that UPS be required to “produce all witnesses in their control or influence at their
expense, including Cowan, Wagner, and Robertson.” This motion was also referred to the
Magistrate Judge for determination (D.E. #209). The Magistrate Judge held a hearing on this
motion on October 15, 2012. At the hearing, the Magistrate Judge advised that she would
consider this request along with this motion for attorneys’ fees. Because the Court does not find
that this expense is directly related to the mistrial, the Court concludes that this request should be
denied.
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Initially, UPS argues that it has not violated any discovery order of this Court; however, the
Magistrate Judge’s May 11, 2012 Order Granting Plaintiff’s Motion to Compel in Part, Granting
Motion to Conduct More Depositions, and Order Denying Motion for Sanctions (“May 11, 2012
Order”) (D.E. #131) ordered UPS to “produce all documents, security files, and discipline records”
associated with certain individuals and investigations. During the course of the trial, it was
discovered that UPS had not done so. Thus, UPS has violated the May 11, 2012 Order.
Next, UPS argues that its failure to produce these documents was either substantially
justified or that other circumstances make an award of expenses unjust. UPS first asserts that its
failure to disclose did not prejudice Plaintiff. However, the District Court has already concluded
in granting the mistrial that UPS’s failure to disclose put Plaintiff at a “disadvantage” and impacted
the “cornerstone” of Plaintiff’s case. The District Court further stated that the undisclosed
documents were “central to the theory” of Plaintiff’s presentation of proof and that the impact of the
non-disclosure warranted a mistrial. Thus, the court finds the allegations of the lack of prejudice
to be unavailing and, in any event, not to be the type of substantial justification or other
circumstances that make an award of expenses unjust.
Additionally, UPS argues that it acted in good faith during the discovery process and that this
should suffice to be the type of substantial justification or other circumstances where an award of
fees and costs is not required. UPS argues that the documents do not support Plaintiff’s case;
however, as already noted, the District Court found otherwise. UPS argues that it did not
intentionally withhold the documents, but there is no intentionality requirement in Rule 37. In any
event, the Court does not find that a mere lack of intentionality constitutes a substantial justification
or other circumstance to make an award of fees and costs unjust. Finally, UPS argues that the failure

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to disclose the updated file was simply an oversight and that it acted with good faith in attempting
to meet its discovery obligations. However, UPS has not sufficiently explained how an oversight
of such magnitude as to warrant a mistrial occurred. While UPS relies upon case law stating that
attorneys’ fees should not be awarded if a party is unable to locate a document that is not produced,
see Buffalo Carpenters Pension Fund v. CKG Ceiling and Partition Co, Inc., 192 F.R.D. 92, 99
(W.D.N.Y. March 25, 2000), the Buffalo Carpenters court relied heavily upon the “several good
faith attempts to secure the missing documents” that resulted in continually being advised that “the
missing documents could not be found.” Id. On the contrary, UPS presents no evidence of any
attempts to provide the complete file that would be comparable to the “unique circumstances”
present in Buffalo Carpenters. Ultimately, the Court does not find that the discovery violation was
substantially justified or that any other circumstances exist to make an award of attorneys’ fees and
costs unjust.
Accordingly, the Court must award reasonable fees and costs under Rule 37. Thus, the sole
remaining inquiry is the reasonable amount of the award. Plaintiff has requested $116,670.00 in fees
and $8,075.17 in costs for Attorney Sutter and Attorney Gillham and $107,520.00 in fees and
$3,304.70 in costs for Attorney Clarke. UPS does not dispute the rates charged by the attorneys but
has argued that the number of hours spent on various tasks is unreasonable and should be excluded
from any fee award. UPS also disputes the reasonableness of certain costs.
Before beginning with UPS’s arguments regarding the reasonableness of certain attorneys’
fees and costs, the Court has reviewed the fee requests and has concluded that no fees should be
ordered before the date that UPS responded to the Court’s May 11, 2012 Order, as it is these
responses that were incomplete and eventually necessitated the mistrial. A review of the record

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demonstrates that UPS responded on June 11, 2012. (D.E. #187, Exhibit L). Thus, the Court will
strike all entries for attorneys’ fees and costs requested on or before this date. This amounts to a
deduction of $37,890 in attorneys’ fees for Attorney Clarke, $33,687.50 in attorneys’ fees for
Attorney Sutter and Attorney Gillham, and $2558.31 in costs for Attorney Sutter and Attorney
Gillham. The Court will not further address any of UPS’s arguments with respect to fees or costs
before this date.
With respect to the costs requested by Attorney Sutter and Attorney Gillham, UPS asserts
that they have unreasonably sought as follows: (1) $50.00 in costs for the witness fee of an
unidentified witness on June 19, 2012; (2) $376.96 in costs for five visits to the Apple store for
“supplies”; (3) costs for a $52.00 meal at Gus’s Fried Chicken restaurant; (4) costs for a $132.00
meal at The Majestic Grille; (5) costs for a $130.00 meal at Blues City Café; (6) costs for a $416.06
meal at Owen Brennan’s restaurant; and, (7) $864.00 in costs for several nights of lodging at The
Peabody Hotel in downtown Memphis.
Upon review, the Court finds that Plaintiff has not justified the reasonableness of the cost
for the unidentified witness fee or the five visits to the Apple store, and thus these costs will not be
awarded. These items amount to $496.26 and will be deducted from the award of costs to Attorney
Sutter and Attorney Gillham.
With respect to the charges for lodging and meal expenses, Plaintiff has not attempted to
demonstrate the reasonableness of these expenses. As UPS notes, the request for the meal at Owen
Brennan’s restaurant only constitutes more than five percent of the entire costs bill submitted in the
instant case. The request for the total cost of meals constitutes approximately nine percent of the
entire costs bill, and the request for the hotel costs constitutes nearly twelve percent of the entire

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costs bill. Thus, rather than awarding the requested amounts, the Court will award the rate of the
United States General Services Administration Per Diem Rates for Memphis, Tennessee to Attorney
Sutter and Gillham from June 22, 2012 until June 28, 2012, which are the dates it appears to the
Court that these attorneys from Little Rock, Arkansas were in Memphis for the trial of this matter.
This per diem rate is $91.00 for lodging and $61.00 for meals. The Court will deduct Attorney
Sutter and Attorney Gillham’s proposed fee award for lodging and meals replace these amounts with
an award of $637.00 for lodging and an award of $427.00 for meals.
Additionally, UPS asserts that Attorney Clarke has billed for witness fees that have also been
billed by Attorney Sutter and Attorney Gillham. Specifically, UPS states that the attorneys appear
to have double-billed witness fees for Brad Jordan, Ira Ford, Jessie Hughes, Alpha Price, Naaman
Kelley, and Rodell Diggins. Upon review, it does appear to the Court that Attorney Sutter and
Attorney Gillham have billed $350.00 for fees for these witnesses and Attorney Clarke has included
these same witnesses in his $600.00 fee request, which is not itemized by amount. The Court finds
that Plaintiff has failed to justify the reasonableness of these dual requests. Thus, the Court will
deduct $350.00 from Attorney Clarke’s fee award with the expectation that these witnesses have
been compensated by Attorney Sutter and Attorney Gillham in accordance with their itemized
billing records.
Further, UPS argues that Plaintiff seeks payment for fees that would have been incurred
regardless of when these two documents were produced: (1) $5,885 in fees for determining
Plaintiff’s damages calculation; (2) $27,335 for deposition-related attorneys’ fees; and, (3) $33,620
in fees for the three days of trial before the mistrial was declared. Upon review, the Court finds that
Plaintiff should be awarded all fees for the three days of trial, as these fees are the precise nature of

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expenses Plaintiff incurred as a result of UPS’s discovery violation.4

With respect to fees for

Plaintiffs’ damages calculation and depositions, the Court has reviewed the affidavits to determine
the amount of the requests for fees and costs incurred after June 11, 2012. The Court finds that UPS
should not be required to compensate Plaintiff for the attorneys’ fees related to depositions, as these
hours should be useful to the resolution of this case even absent the mistrial. Thus, the Court will
deduct $1,575.00 for the deposition of UPS’s corporate representative on September 14, 2012 and
$1,820.00 for the deposition of Plaintiff and his wife on June 13, 2012. The Court does not find any
requested fees on or after June 11, 2012 for Plaintiff’s damages calculation, and thus the fee award
will not be adjusted on this basis.
Finally, upon review of the fee requests, the Court finds that hours for post-trial mediation
are not a direct result of the mistrial, as there is no certainty that the trial would have resulted in a
verdict even without the mistrial. Thus, the portions of the entries that pertain to mediation will be
stricken from the fee award. Specifically, the Court will deduct $3,587.50 from Attorney Clarke’s
fee request from July 18, July 19, August 16, August 17, and August 29, 2012.
III. Conclusion
For the reasons set forth herein, Plaintiff’s Motion for Attorneys’ Fees and Costs is hereby
GRANTED. The Court deducted $33,687.50 for fees on or before June 11, 2012 from Attorney

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UPS continues to argue that Plaintiff had repeatedly requested a mistrial on other
grounds and, had one of those requests been granted, that Plaintiff “would currently be in the
same position.” While that may be true, those other requests were not granted, and the District
Court concluded that jury instructions could have appropriately remedied any other errors in the
proceedings. Yet the District Court found that it was UPS’s non-production of responsive
documents that were central to Plaintiff’s case that required a mistrial. As such, Rule 37 requires
that the party that failed to comply with the discovery order pay the reasonable costs incurred by
the violation.
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Sutter and Attorney Gillham’s attorneys’ fees request for an award of $82,982.50. The Court
deducted $4,580.11 in costs from Attorney Sutter and Attorney Gillham’s cost request but added
$1,064.00 in per diem for lodging and meals for an award of $4,559.06. The Court deducted
$44,872.50 from Attorney Clarke’s attorneys’ fees request for an award of $62,647.50. The Court
deducted $350.00 from Attorney Clarke’s cost request for an award of $2,954.70. In sum, the Court
awards $87,541.56 to Attorney Sutter and Attorney Gillham and $65,602.20 to Attorney Clarke.

IT IS SO ORDERED this 21st day of November, 2012.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

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