Areizaga v. ADW Corporation

Filing 130

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant ADW Corporation's Application for Attorneys' Fees (Dkt. No. 94 ) and, pursuant to Federal Rules of Civil Procedure 26(c)(3) and 37(a)(5), ORDERS Plaintiff Efrain Areizaga to, by 9/1/2016, pay Defendant ADW Corporation its reasonable attorneys' fees and costs incurred. (Ordered by Magistrate Judge David L Horan on 6/21/2016) (ran)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EFRAIN AREIZAGA,
Plaintiff,
V.
ADW CORPORATION,
Defendant.

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No. 3:14-cv-2899-B

MEMORANDUM OPINION AND ORDER
Defendant ADW Corporation (“Defendant” or “ADW”) has filed an Application
for Attorneys’ Fees (the “Application”). See Dkt. No. 94. United States District Judge
Jane J. Boyle has referred the Application to the undersigned United States magistrate
judge pursuant to 28 U.S.C. § 636(b). See Dkt. No. 108. For the reasons and to the
extent explained below, the Court GRANTS in part and DENIES sin part the
Application.
Background
Defendant filed a Motion to Compel Written Discovery Responses and
Production of Documents (the “MTC”), requesting that the Court enter an order
compelling Plaintiff Efrain Areizaga (“Areizaga” or “Plaintiff”) to respond to ADW’s
First Set of Interrogatories and produce all responsive documents and things requested
in ADW’s First Requests for Production. See Dkt. No. 54. Chief Judge Jorge A. Solis
referred the MTC to the undersigned United States magistrate judge for
determination. See Dkt. No. 56.
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Plaintiff then filed a Second Motion for a Protective Order (the “MPO”),
requesting that the Court enter a protective order prohibiting Defendant’s requests for
production and interrogatories or, alternatively, withholding adjudication of Plaintiff’s
MPO until Plaintiff’s petition for writ of mandamus to the United States Court of
Appeals for the Fifth Circuit has been finally decided. See Dkt. No. 60. Chief Judge
Solis also referred the MPO to the undersigned for determination. See Dkt. No. 61.
After responses were filed to each motion, and Defendant filed a reply in support
of its MTC, and Plaintiff then moved to strike certain filings and then withdrew that
motion to strike, see Dkt. Nos. 59, 65, 66, 70, 71, 72, & 74, both the MTC and MPO are
ripe for decision.
In an April 4, 2016 Memorandum Opinion and Order, the Court granted in part
and denied in part Defendant’s Motion to Compel Written Discovery Responses and
Production of Documents [Dkt. No. 54] and granted in part and denied in part
Plaintiff’s Second Motion for a Protective Order [Dkt. No. 60]. See Dkt. No. 77.
The Court there explained that Federal Rule of Civil Procedure 37(a)(5)(A)
provides that, if a motion to compel is granted, or if the requested discovery is provided
after the motion was filed, “the court must, after giving an opportunity to be heard,
require the party ... whose conduct necessitated the motion, the party or attorney
advising that conduct, or both to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees,” except that “the court must not order
this payment if: (i) the movant filed the motion before attempting in good faith to
obtain the disclosure or discovery without court action; (ii) the opposing party’s
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nondisclosure, response, or objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.” See id. at 21 (citing Fed. R. CIV. P.
37(a)(5)(A)). And Federal Rule of Civil Procedure 37(a)(5)(C) provides that, “[i]f the
motion is granted in part and denied in part, the court may issue any protective order
authorized under Rule 26(c) and may, after giving an opportunity to be heard,
apportion the reasonable expenses for the motion.” See id. (citing FED. R. CIV. P.
37(a)(5)(C)). And Federal Rule of Civil Procedure 26(c)(3) provides that, in connection
with a motion under Rule 26(c) for a protective order, Federal Rule of Civil Procedure
“37(a)(5) applies to the award of expenses.” See id. (citing FED. R. CIV. P. 26(c)(3)).
The Court granted Plaintiff leave to file a response to explain why the Court
should not require Plaintiff to pay Defendant, as required by Rule 37(a)(5) and 26(c)(3),
the expenses, including attorneys’ fees, that Defendant incurred in making and
briefing its MTC and responding to Plaintiff’s MPO – other than as to Request for
Production Nos. 28, 29, 31, and 37 in Defendant ADW Corporation’s First Requests for
Production and Interrogatory Nos. 7 and 10 in Defendant ADW Corporation’s First Set
of Interrogatories. See id. at 21-22. The Court found that Defendant attempted in good
faith to obtain the discovery at issue without court action before filing its MTC and
ordered Plaintiff to fully explain whether his nondisclosure, responses, or objections
at issue were “substantially justified” or whether other circumstances make an award
of expenses under Rule 37(a)(5) unjust. Id. at 22.
Plaintiff timely filed his response, see Dkt. No. 79, and, as permitted, Defendant
filed a reply, see Dkt. No. 86.
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The Court then found that Plaintiff has not shown that his nondisclosure,
responses, or objections at issue were substantially justified or that other
circumstances make an award of expenses under Rule 37(a)(5) unjust and determined
that it will, pursuant to Rules 26(c)(3) and 37(a)(5), apportion the reasonable expenses
for the motions by requiring Plaintiff to pay Defendant its reasonable attorneys’ fees
and costs (as described below) incurred in making and briefing Defendant’s MTC and
responding to Plaintiff’s MPO – other than as to Request for Production Nos. 28, 29,
31, and 37 in Defendant ADW Corporation’s First Requests for Production and
Interrogatory Nos. 7 and 10 in Defendant ADW Corporation’s First Set of
Interrogatories. See Dkt. No. 92 at 5-6. The court explained that this award of fees
includes the attorneys’ fees and costs that Defendant incurred in drafting and filing its
MTC and the reply in support of the MTC [Dkt. No. 65], other than as to the specific
discovery requests just listed, and in drafting and filing its response to Plaintiff’s MPO
[Dkt. No. 66]. See id. at 6. The Court ordered Defendant to file an application for
attorneys’ fees and costs, accompanied by supporting evidence, establishing the amount
of the attorneys’ fees and costs to be awarded under Rules 26(c)(3) and 37(a)(5). See id.
As ordered, Defendant filed its Application, see Dkt. No. 94, to which Plaintiff
filed a response, see Dkt. No. 104, and Defendant did not file a reply.
Legal Standards
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.
108; 28 U.S.C. § 636(b); Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17
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(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). “A reasonable
hourly rate is the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.”
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)
(citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984)). The relevant legal
community is the community in which the district court sits. See Tollett v. City of
Kemah, 285 F.3d 357, 368 (5th Cir. 2002).
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, or inadequately documented. See id. The hours
remaining are those reasonably expended. See id. 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.
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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).
The undersigned recognizes that the analysis set forth above, and particularly
the interplay of the lodestar analysis and the Johnson factors, has been called into
question. See Perdue, 559 U.S. at 552-53; S&H Indus., Inc. v. Selander, No. 3:11-cv-6-

2988-M-BH, 2013 WL 6332993, at *2-*3 (N.D. Tex. Dec. 5, 2013). But, 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., 751 F.3d 291, 296 (5th
Cir. 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 ADW here has not requested
such an enhancement. 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 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 – the undersigned will not address whether
Perdue changed the landscape of calculating attorneys’ fees awards in the Fifth Circuit.
Rather, the analysis below will take into account the necessary factors when

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determining the appropriate amount of attorneys’ fees.
Analysis
Defendant requests an order requiring Plaintiff to pay Defendant’s costs and
fees in the amount no less than $7,500 or, alternatively, an amount the Court deems
reasonable under the circumstances. ADW calculated the fees it incurred by
multiplying the 50 hours worked by the hourly rates of the attorneys who billed those
hours to arrive at the total of $22,447.50 that includes fees incurred responding to
Plaintiff’s related, dilatory filings. But ADW explains that it seeks only a fraction of
these total fees incurred because of Plaintiff’s abuse of the discovery process and that,
in the event that the Court restricts the fee award to fees incurred in connection with
the MTC and Areizaga’s MPO, ADW is still entitled to its reasonable and necessary
fees in the amount of $13,398.75, which is the sum of fees for those two categories. See
Dkt. No. 94 at 2-4.
Plaintiff objects to Defendant’s including fees incurred other than for its MTC
and responding to his MPO and asserts that the Application fails to specify which
motion for protective order the fees are attributable to and to properly identify the
work done for certain filings. Plaintiff also asserts that the 18 hours that Defendant
attributes to the MTC appear excessive and unreasonable and that the Application’s
supporting materials contain contradictory information. Finally, Plaintiff asserts that,
because of financial pressures in his personal life, any attorneys’ fee awarded should
be entered into the final judgment to set off the amount that he expects to be awarded
on his claims. See Dkt. No. 104 at 4.
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Taking up Plaintiff’s final argument first, the Court will not defer payment of
this award of expenses until final judgment but will provide somewhat longer than it
otherwise would for Plaintiff to make the payment. The Court is also not persuaded
that the Application does not provide the information that the Court needs to fix the
amount of the award under Rules 26(c)(3) and 37(a)(5) – which, consistent with the
Court’s Order on Fed. R. Civ. P. 26(c)(3) and 37(a)(5) Award of Expenses [Dkt. No. 92],
will be limited to the fees that Defendant incurred in making and briefing Defendant’s
MTC and responding to Plaintiff’s MPO – other than as to Request for Production Nos.
28, 29, 31, and 37 in Defendant ADW Corporation’s First Requests for Production and
Interrogatory Nos. 7 and 10 in Defendant ADW Corporation’s First Set of
Interrogatories.
As to that work, ADW reports that it incurred reasonable and necessary
attorneys’ fees in the amount of $13,398.75. This amount is made up of work performed
by attorneys Danielle M. Matthews, John R. Herring, Jordan C. Campbell, and Barrett
T. Robin of the law firm of Norton Rose Fulbright US LLP. But a review of Defendant’s
filings shows that at least some of this reported time is attributable to responding to
Plaintiff’s first Emergency Motion for Protective Order [Dkt. No. 42] and not to his
Second Motion for a Protective Order [Dkt. No. 60]. Accordingly, the Court will only
consider the hours attributable to the MTC and MPO as to which the Court has
awarded fees at this point. That consists of 10.25 hours at $310.00 an hour ($3,177.50)
for the work performed by associate Barrett T. Robin, 5.25 hours at $430.00 an hour
($2,257.50) for the work performed by associate Jordan C. Campbell, 9.75 hours at
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$555.00 an hour ($5,411.25) for the work performed by senior associate John R.
Herring, and 1.00 hour at $655.00 an hour ($655.00) for the work performed by senior
counsel Danielle M. Matthews, for a total of $11,501.25. See Dkt. No. 94-1, 94-2, & 943.
ADW’s request is supported by the Declaration of Danielle Alexis Matthews with
the firm’s invoices issued to ADW as support. See Dkt. Nos. 94-1 & 94-2. Ms. Matthews
declares that she has 16 years of legal practice, see Dkt. No. 94-1, and ADW’s
Application makes clear Mr. Robin is a first-year associate. ADW has not otherwise
specified their attorneys’ respective experience levels other than to provide their titles
within their law firm. Ms. Matthews explains that “Fulbright charged ADW its
standard hourly rate for each of the attorneys who worked on the matter and used
attorneys with a range of legal experience, employing the proper level of experience for
the particular work performed” and that “[e]ach member of ADW's legal team
performed the tasks commensurate with his or her skill set and level of experience, and
the hours each person expended were necessary and non-duplicative.” Dkt. No. 94-1
at 3. She declares that “[t]he hourly rates charged for each member of ADW's legal
team are similarly reasonable and reflect each person’s level of experience” and that,
in her opinion, “all of the hours spent by [her], Mr. Herring, Mr. Campbell, and Mr.
Robin on the Motion to Compel, responding to Motions for Protective Order, and
addressing numerous other related, dilatory filings were reasonable and necessary”
and “the rates charged by the attorneys in this matter constitute normal, customary,
and reasonable charges for the services rendered.” Id.
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The billing records submitted by Ms. Matthews reflect the work performed by
her, Mr. Herring, Mr. Campbell, and Mr. Robin with a narrative description of the
work done and the number of hours that it took to complete the work, appropriately
“redacted pursuant to the attorney-client privilege and the attorney work product
doctrine.” Id. at 2; see Dkt. No. 94-2. The billing records also redact “[c]ertain tasks ...
entirely because they are not properly apportioned to Areizaga pursuant to the Court’s
Order on Fed. R. Civ. P. 26(C)(3) and 37(A)(5) Award of Expenses.” Id. at 2; see Dkt.
No. 94-2.
The Court has carefully reviewed the invoices and finds that the 26.25 total
hours ADW attributes to briefing the MTC and responding to Plaintiff’s MPO are
reasonable and necessary and not excessive, duplicative, or inadequately documented
and therefore were reasonably expended for the tasks for which the Court has
determined that ADW should be awarded its reasonable expenses.
But Ms. Matthews’s declaration does not contain evidence – apart from her
boilerplate statement that the rates charged are normal, customary, and reasonable
– that the requested rates are in line with those prevailing in this community for
similar services by lawyers of reasonably comparable skill, experience, and reputation.
ADW has provided information on Ms. Matthews’s experience level and qualifications
and on Mr. Robin’s experience level.
But ADW has not otherwise produced satisfactory evidence that the requested
rates for its attorneys are in line with those prevailing in this community for similar
services by lawyers of reasonably comparable skill, experience, and reputation.
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Nevertheless, it is well-established that the Court may use its own expertise and
judgment to make an appropriate independent assessment of the hourly rates charged
for the attorneys’ services. See Davis v. Bd. of Sch. Comm’rs of Mobile Cnty., 526 F.2d
865, 868 (5th Cir. 1976); see also Vanliner Ins. Co. v. DerMargosian, No. 3:12-cv-5074D, 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 cannot find that hourly rates of $655.00 for a 15-year lawyer and
$310.00 for a 1-year lawyer are reasonable and within the market rate for attorneys
handling this type of litigation in the Dallas area. Rather, consistent with this Court’s
prior decisions and expertise and judgment as to what it is the market rate in this
community for this work, the Court will award ADW fees for Ms. Matthews’s work at
a reasonable hourly rate of $450.00 and for Mr. Robin’s work at a reasonable hourly
rate of $250.
The Court has no basis, on this record, to find that Mr. Herring’s or Mr.
Campbell’s requested rates are reasonable. While this deficiency may justify the denial
of attorneys’ fees for these lawyers entirely, the Court notes that Chief Judge Barbara
M. G. Lynn has addressed such a deficiency in another case in the last few years.
Where a plaintiff requesting attorneys’ fees did not submit evidence of an associate’s
background information and failed to supply any supporting documentation to
determine the prevailing market rate in the Dallas area, Judge Lynn reduced the
requested rate by ten percent. See S&H Indus., Inc. v. Selander, No. 3:11-cv-2988-MBH, 2014 WL 1116700, at *6 (N.D. Tex. Mar. 20, 2014). But the Court cannot find that
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even a ten-percent discount of Mr. Herring’s or Mr. Campbell’s requested rates of
$555.00 and $430.00 comport with the market rate in this community for this work by
law firm associates. Accordingly, consistent with this Court’s prior decisions and
expertise and judgment as to what it is the market rate in this community for this
work, the Court will award ADW fees for Mr. Herring’s work at a reasonable hourly
rate of $300.00 and for Mr. Campbell’s work at a reasonable hourly rate of $275.00.
The Court therefore, having taken full account of Plaintiff’s objections, finds the
appropriate lodestar here to be calculated as 10.25 hours at $250.00 an hour
($2,562.50) for the work performed by associate Barrett T. Robin, 5.25 hours at $275.00
an hour ($1,443.75) for the work performed by associate Jordan C. Campbell, 9.75
hours at $300.00 an hour ($2,925.00) for the work performed by senior associate John
R. Herring, and 1.00 hour at $450.00 an hour ($450.00) for the work performed by
senior counsel Danielle M. Matthews, for a total of $7,381.25.
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, the
Court notes that Defendant has not claimed every hour billed as reflected on its
invoices in connection with the work on the MTC and MPO. And ADW does not seek
an enhancement of its attorneys’ fees but, rather, requests only a fraction of them. But
ADW also did not specifically explain any reduction for time attributable to the work
on Request for Production Nos. 28, 29, 31, and 37 in its First Requests for Production
and Interrogatory Nos. 7 and 10 in its First Set of Interrogatories in connection with
these motions. Accordingly, the Court will reduce the lodestar down to $6,500.00 but
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finds that there are no other exceptional circumstances.
Conclusion
The Court GRANTS in part and DENIES in part Defendant ADW Corporation’s
Application for Attorneys’ Fees [Dkt. No. 94] and, pursuant to Federal Rules of Civil
Procedure 26(c)(3) and 37(a)(5), ORDERS Plaintiff Efrain Areizaga to, by September
1, 2016, pay Defendant ADW Corporation its reasonable attorneys’ fees and costs
incurred in making and briefing Defendant’s Motion to Compel Written Discovery
Responses and Production of Documents [Dkt. No. 54] and responding to Plaintiff’s
Second Motion for a Protective Order [Dkt. No. 60] – other than as to Request for
Production Nos. 28, 29, 31, and 37 in Defendant ADW Corporation’s First Requests for
Production and Interrogatory Nos. 7 and 10 in Defendant ADW Corporation’s First Set
of Interrogatories – in the amount of $6,500.00.
SO ORDERED.
DATED: June 21, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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