Simmons v. Tarrant County 9-1-1 District et al
Filing
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Memorandum Opinion and Order granting in part, denying in part 42 MOTION for Attorney Fees Defendants' Application for Attorneys' Fees. (See order for specifics) (Ordered by Magistrate Judge David L Horan on 6/10/2014) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ALISA SIMMONS,
Plaintiff,
V.
TARRANT COUNTY 9-1-1 DISTRICT
and GREGORY PETRY,
Defendants.
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No. 3:13-cv-1389-M
MEMORANDUM OPINION AND ORDER AWARDING ATTORNEYS’ FEES
ON MOTION TO COMPEL
Background
Defendants Tarrant County 9-1-1 District and Gregory Petry filed a Motion to
Compel, see Dkt. No. 26, which District Judge Barbara M. G. Lynn has referred to the
undersigned magistrate judge for determination, see Dkt. No. 27. The Court’s April 4,
2014 order granted the motion in part and denied the motion in part as moot. See Dkt.
No. 36.
In an April 23, 2014 order, the Court granted attorneys’ fees as required by
Federal Rule of Civil Procedure 37(a)(5). See Dkt. No. 39. The Court ordered the parties
to confer about the reasonable amount of attorneys’ fees and whether fees should be
assessed against Plaintiff Alisa Simmons, Plaintiff’s counsel, or both and to file a joint
status report notifying the Court of the results of the conference. See id. The Court
further provided that Defendants could file an application for attorneys’ fees if the
parties did not reach an agreement at the joint status conference. See id.
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The parties conferred but did not reach an agreement, and they then filed their
joint status report. See Dkt. No. 41. Defendants also filed an application for attorneys’
fees. See Dkt. No. 42. Plaintiff did not file a response to the application for attorneys’
fees although the Court’s April 23, 2014 order expressly provided an opportunity to do
so, and the deadline to file a response has passed. See Dkt. No. 39 at 4.
Legal Standards and Analysis
The Amount of Reasonable Attorneys’ Fees to be Awarded Under Rule 37(a)(5)(A)
The undersigned has authority to enter a nondispositive order granting
attorneys’ fees as a sanction under Federal Rule of Civil Procedure 37. See Dkt. No. 27;
28 U.S.C. § 636(b); Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17 (5th
Cir. Unit A 1981) (per curiam).
“This Court uses the ‘lodestar’ method to calculate attorney’s fees.” Heidtman
v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citing Fender v. Zapata
Partnership, Ltd., 12 F.3d 480, 487 (5th Cir.1994); Saizan v. Delta Concrete Prods.,
Inc., 448 F.3d 795, 800 (5th Cir. 2006). The lodestar is calculated by multiplying the
number of hours an attorney reasonably spent on the case by an appropriate hourly
rate, which is the market rate in the community for this work. See Smith & Fuller,
P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012). The party seeking
reimbursement of attorneys’ fees bears the burden of establishing the number of hours
expended through the presentation of adequately recorded time records as evidence.
See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The Court should use this time
as a benchmark and then exclude any time that is excessive, duplicative, unnecessary,
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or inadequately documented. See id. The hours remaining are those reasonably
expended. There is a strong presumption of the reasonableness of the lodestar amount.
See Perdue v. Kenny A., 559 U.S. 542, 552 (2010); Saizan, 448 F.3d at 800.
After calculating the lodestar, the Court may either (1) accept the lodestar figure
or (2) decrease or enhance it based on the circumstances of the case, taking into
account what are referred to as the Johnson factors. See La. Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324, 329 (5th Cir. 1995); Johnson v. Ga. Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by Blanchard v.
Bergeron, 489 U.S. 87, 90 (1989). The Johnson factors are: (1) the time and labor
required; (2) the novelty and difficulty of the legal issues; (3) the skill required to
perform the legal service properly; (4) the preclusion of other employment by the
attorney as a result of taking the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or other circumstances;
(8) the monetary amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) whether the case is undesirable; (11) the
nature and duration of the professional relationship with the client; and (12) awards
in similar cases. See Johnson, 448 F.2d at 717-19; see also Saizan, 448 F.3d at 800.
Because the lodestar is presumed to be reasonable, it should be modified only in
exceptional cases. See Watkins, 7 F.3d at 457.
Additionally, a party seeking attorneys’ fees may only recover for time spent in
preparing the actual discovery motion – that is, the “reasonable expenses incurred in
making the motion, including attorney’s fees.” FED. R. CIV. P. 37(a)(5)(A). This can
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include fees for a paralegal’s time. See Compass Bank v. Villarreal, Civ. A. No. L-10-8,
2011 WL 1740270, at *15 (S.D. Tex. May 5, 2011) (“To the extent they are not
recoverable as costs or attorneys’ fees, the paralegal fees listed in Davis’s declarations
are recoverable as litigation expenses under Rule 37.”).
The undersigned recognizes that the analysis set forth above, and particularly
the interplay of the lodestar analysis and the Johnson factors, has recently been called
into question. See Perdue, 559 U.S. at 552-53; S&H Indus., Inc. v. Selander, No. 3:11cv-2988-M-BH, 2013 WL 6332993, at *2-*3 (N.D. Tex. Dec. 5, 2013). But in a recent
opinion, the United States Court of Appeals for the Fifth Circuit, without comment or
reference to the United States Supreme Court’s decision in Perdue, continued to utilize
the approach laid out by this Court. See Black v. SettlePou, P.C., 732 F.3d 492, 502-03
(5th Cir. 2013). But see In re Pilgrim’s Pride Corp., 690 F.3d 650, 663-64 (5th Cir. 2012)
(analyzing whether any changes brought about by Perdue apply to bankruptcy
attorneys’ fees calculations); but see also In re ASARCO, L.L.C., Nos. 12-40997, 1240998, & 13-40409, ___ F.3d ____, 2014 WL 1698072, at *4 (5th Cir. Apr. 30, 2014)
(following Pilgrim’s Pride).
In Perdue, the Supreme Court was ultimately considering the appropriateness
of an enhancement of an award of attorneys’ fees, and Defendants here have not
requested such an enhancement. See Dkt. No. 49 at 5. Other factors also distinguish
this case from Perdue, including the fact that Perdue involved a 42 U.S.C. § 1988 claim
and the fees were therefore paid by state and local taxpayers. See Perdue, 559 U.S. at
558. Moreover, after the lodestar amount is determined, it may not be adjusted due to
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a Johnson factor that was already taken into account during the initial calculation of
the lodestar, see Saizen, 448 F.3d at 800, and the lodestar calculation may take into
account several Johnson factors, see Black, 732 F.3d at 503 n.8.
In light of the circumstances in this case – where there is no request for
enhancement and no Section 1988 claim – this Court will not address whether Perdue
changed the landscape of calculating attorneys’ fees awards in the Fifth Circuit.
Rather, it will take into account the necessary factors when determining the
appropriate amount of attorneys’ fees.
Defendants seek $4,933.75 in attorneys’ fees for 28.4 hours of work performed
by attorneys Marigny Lanier and Alise Abel and paralegal Dorothy McDowell. See Dkt.
No. 42. The requested hourly billing rate for Ms. Lanier is $175; for Ms. Abel, $150;
and for Ms. McDowell, $75. See id. Defendants’ Application for Attorneys’ Fees is
supported by the Declaration of Marigny Lanier and billing statements from Maris &
Lanier, P.C. See Dkt. No. 42-1.
Ms. Lanier declares that she is an experienced employment law attorney who
has handled many cases in both state and federal court in Texas. She declares that the
work for which Maris & Lanier, P.C. seeks attorneys fees was limited to corresponding
with Plaintiff’s attorney regarding responses to discovery requests; drafting and filing
the motion to compel; analyzing Plaintiff’s responses and document production to
determine if Plaintiff complied with discovery requests; participating in a face-to-face
conference with Plaintiff’s attorney; researching case law relevant to Plaintiff’s failure
to respond to discovery; and attending the motion to compel hearing. Ms. Lanier
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declares, and the Court finds, that the attorneys and paralegals performing this work
possessed the requisite skill and experience to properly perform the legal services
rendered.
The billing records generally reflect the work performed by each attorney or
paralegal with a narrative description of the work done and the number of hours that
it took to complete the work. See Dkt. No. 42-1. But a review of the billing records
reflects requested fees for a total of 37.15 hours – not 28.4 hours – and reflects a
number of hours spent in the course of activities other than those in making the motion
to compel or prosecuting that motion.
Additionally, because some of the billing entries used block billing without
specifying the time spent on activities related to the motion to compel, it is impossible
to determine the exact amount of time spent on the motion to compel and properly
awarded under Rule 37(a)(5)(A). The term “block billing” refers to the time-keeping
method by which each lawyer or paralegal enters the total daily time spent working
on a case, rather than itemizing the time expended on specific tasks. See Barrow v.
Greenville Indep. Sch. Dist., No. 3:00-cv-913-D, 2005 WL 6789456, at *3 (N.D. Tex. Dec.
20, 2005). Block billing makes it difficult to determine the precise number of hours that
should be reduced in each time entry due to vague descriptions. See id. at *4. The block
billing here makes it impossible to determine, among other things, how much time was
devoted to activities directly related to the motion to compel.
The billing entries for which fees are requested reflect billed hours of .80 and
1.20 for Ms. Abel and of 1.20, 2.20, .50, and 1.20 for Ms. McDowell that are for
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activities that do not relate directly to making the motion to compel or that include
unrelated activities for which the time is not segregated from activities related directly
to making the motion to compel. The Court will not award fees for those hours.
Ms. Lanier declares that the rates charged by Maris & Lanier, P.C. are
consistent with rates charged by comparable firms, are the standard rates charged in
similar matters in which the firm represents similar clients, and are reasonable for
work performed in Texas. See Dkt. No. 42-1. The Court finds that the prevailing rate
in Dallas County for attorneys with the experience, skill, and ability of Defendants’
attorneys and paralegal is, if anything, higher than the rates and fees charged by
Maris & Lanier, P.C. The Court finds, based on the information and record before the
Court, including the Declaration of Marigny Lanier, that the requested hourly rates
in this case are reasonable and are within the market rate for attorneys and paralegals
handling this type of litigation in the Dallas area. See generally Vanliner Ins. Co. v.
DerMargosian, No. 3:12-cv-5074-D, 2014 WL 1632181, at *2 (N.D. Tex. Apr. 24, 2014)
(noting that the Court is an expert on the reasonableness of attorneys’ fees).
The Court finds the appropriate lodestar here to be calculated as 10.70 hours for
Ms. Lanier at $175.00 an hour ($1,872,50); 17.30 hours for Ms. Abel at $150.00 an hour
($2,595.00); and 2.05 hours for Ms. McDowell at $75.00 an hour ($153.75), for a total
of $4,621.25. The Court has considered the Johnson factors but notes that the lodestar
is presumed to be reasonable and should only be modified in exceptional cases. Here,
Defendants do not seek an enhancement of their attorneys’ fees, and there are no other
exceptional circumstances.
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Plaintiff did not file a response to the application for attorneys’ fees, but, in the
joint status report, Plaintiff challenges the amount of fees sought on the basis that
amount is beyond the necessary scope of work required to file a motion to compel and
attend a hearing and that two attorneys billed for work on the motion and attended the
hearing. See Dkt. No. 41. But, except insofar as the Court has already determined to
reduce the fee request for hours billed that are inadequately documented or were not
incurred in making the motion to compel, the Court finds that Defendants’ requested
fees are limited to reasonable expenses incurred in making and prosecuting the motion
to compel and are properly awarded under Rule 37(a)(5)(A).
Plaintiff’s Attorney Should Pay the Attorneys’ Fees Award to Defendants
Defendants do not take a position on whether Plaintiff, her attorney, or both
should pay the attorneys’ fees award under Rule 37(a)(5)(A). In the joint status report,
Plaintiff’s counsel argues that Plaintiff should pay the attorneys’ fees because Plaintiff
was not sufficiently cooperative with her attorney in responding to the requests for
production. See id. at 2-3.
Defendants moved to compel the production of documents because Plaintiff’s
attorney wholly failed to respond to Defendants’ Second Request for Production. See
Dkt. No. 26. When a party is represented by an attorney, it is the attorney’s
responsibility to sign and serve discovery responses.
To be sure, “[w]hen a person chooses to file a lawsuit, she must be prepared to
accept the duties attached to that choice, which include producing relevant information
and documents.” Brown v. MV Student Transp., No. 4:11-CV-685 CAS, 2012 WL
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2885252, at *2 (E.D. Mo. July 13, 2012). And a client can be held responsible for and
is bound by her lawyer’s actions. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 396-97(1993) (holding that a client is held responsible for the acts
of his counsel).
But counsel, not his client, is responsible for coordinating the preparation of,
signing, and serving written responses to discovery requests. Counsel have “an
obligation, as officers of the court, to assist in the discovery process by making diligent,
good-faith responses to legitimate discovery requests.” McLeod, Alexander, Powel &
Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486 (5th Cir. 1990). “As to the content and form
of [a party’s] discovery responses, it is [the party’s] counsel’s professional responsibility
to assist the [party] in answering the discovery requests fully and in accordance with
the law.” Maggette v. BL Dev. Corp., Civ. A. Nos. 2:07CV181-M-A & 2:07CV182-M-A,
2009 WL 1767091, at *1 (N.D. Miss. June 18, 2009). Indeed, Federal Rule of Civil
Procedure 26(g)(1) provides that “every discovery request, response, or objection must
be signed by at least one attorney of record in the attorney’s own name – or by the
party personally, if unrepresented – and must state the signer’s address, e-mail
address, and telephone number” and that, “[b]y signing, an attorney or [unrepresented]
party certifies that to the best of the person’s knowledge, information, and belief
formed after a reasonable inquiry: ... (B) with respect to a discovery request, response,
or objection, it is: (i) consistent with these rules and warranted by existing law or by
a nonfrivolous argument for extending, modifying, or reversing existing law, or for
establishing new law; (ii) not interposed for any improper purpose, such as to harass,
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cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither
unreasonable nor unduly burdensome or expensive, considering the needs of the case,
prior discovery in the case, the amount in controversy, and the importance of the issues
at stake in the action.” FED. R. CIV. P. 26(g)(1).
Under Rule 37(a)(5), “the party ... whose conduct necessitated the motion” to
compel or the “attorney advising that conduct, or both” may be required “to pay the
movant’s reasonable expenses incurred in making the motion, including attorney's
fees.” FED. R. CIV. P. 37(a)(5)(A). Plaintiff’s counsel attempts to place the blame for the
lack of document production on his client. But Defendants were forced to file their
motion to compel because of Plaintiff’s attorney’s inaction and inattention to this case,
including his failures to file any written responses or to respond to Defendants’
communications concerning outstanding discovery. The Court granted the motion to
compel because “Plaintiff has not provided written responses or produced responsive
documents to Defendants’ Second Request for Production.” Dkt. No. 36 at 2.
The Court does not credit the attempt of Plaintiff’s attorney, who failed in his
responsibility to comply with the Federal Rules of Civil Procedure, to divert attention
to a client who may not fully understand the discovery process, who (according to
Plaintiff’s counsel) “is not going out of her way to not turn over documents” but “seems
unaware of what if any additional documents she is not turning over,” and who, as the
client of a licensed attorney retained to represent her in this matter, was not the one
ultimately responsible for compiling and serving written responses and objections to
Defendants’ document requests. If the Court had granted the motion to compel only
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because Plaintiff failed to provide all responsive documents after her counsel had
served written responses and objections and produced some documents, the
circumstances might support a different result. But the Court finds that, in this case,
an award of attorneys’ fees to be paid by Plaintiff’s attorney is a more appropriate
sanction under Rule 37(a)(5)(A) than an award of fees to be paid by Plaintiff herself.
Conclusion
Defendants’ Application for Attorney’s Fees [Dkt. No. 42] is GRANTED in part
and DENIED in part under Federal Rule of Civil Procedure 37(a)(5)(A). Plaintiff’s
attorney, Douglas C. Greene, must pay the firm of Maris & Lanier, 3710 Rawlins
Street, Suite 1550, Dallas, Texas, 75219, the amount of $4,621.25 for payment of
reasonable attorneys’ fees and expenses under Rule 37(a)(5)(A) by July 10, 2014.
SO ORDERED.
DATED: June 10, 2014
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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