Rib City Franchising v. Bowen et al

Filing 124

MEMORANDUM DECISION AND ORDER AWARDING PLAINTIFF ATTORNEY FEES AGAINST DEFENDANTS TONI JORGENSEN AND WAY OUT WEST RESTAURANT GROUP, INC.-granting 76 Motion for Attorney Fees the amount of $6,524.50 within seven calendar days. Failure to pay this amount in full within seven days from the date of this order shall result in immediate judgment in favor of Plaintiff Rib City Franchising. Signed by Magistrate Judge Evelyn J. Furse on 3/28/16. (jmr)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

RIB CITY FRANCHISING, LLC, a Florida
Limited Liability Company,
Plaintiff,
vs.
SARAH BOWEN, aka “Sarah Epperson”
and fka “Sarah Braegger”; CULINARY
DESIGNS, LLC, a Utah Limited Liability
Company, dba “Pig City Grill”; TONI
JORGENSEN, individually and dba “Way
Out West Restaurant Group”; and WAY
OUT WEST RESTAURANT GROUP,
INC., a defunct Utah Corporation;
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

MEMORANDUM DECISION AND
ORDER AWARDING PLAINTIFF
ATTORNEY FEES AGAINST
DEFENDANTS TONI JORGENSEN
AND WAY OUT WEST RESTAURANT
GROUP, INC.

Case No. 2:15-cv-00636-CW-EJF
District Judge Clark Waddoups
Magistrate Judge Evelyn J. Furse

Plaintiff Rib City Franchising (“RFC”) filed a Motion to Set Amount of Attorney Fees
Incurred in Connection with Filing Motion to Compel Against Toni Jorgensen and Way Out
West Restaurant Group, Inc. (the “Jorgensen Defendants”), (ECF No. 76). Based on the Motion
and the Declaration of Jessica P. Wilde, (ECF No. 75), the Court finds RFC’s requested attorney
fees reasonable and GRANTS the Motion, (ECF No. 76).
In its Order granting the related motion to compel, the Court also granted “RFC’s request
for attorney fees and costs related to RCF’s motion to compel the production of documents,
including communicating with counsel regarding the Jorgensen Defendants’ responses, filing the
Motion and accompanying memoranda, arguing the Motion at the hearing, and drafting this
proposed Order.” (Order 3, ECF No. 81.) Subsequently, RFC submitted this Motion and
accompanying attorney billing statement reflecting that Jessica Wilde spent 15.1 hours of time

1

and Lewis Francis spent 10.6 hours of time in connection with this discovery dispute, totaling
$6,524.50 in attorney fees. (See Decl. of Jessica P. Wilde, ECF No. 75-1.)
The Jorgensen Defendants oppose RFC’s proposed fee amount, arguing that the total fee
should not exceed nine hours of time for a single attorney because the issues were “not so
complex, novel, or voluminous to require multiple attorneys’ participation in the process and
drafting of correspondence, memoranda, and orders.” (Defs.’ Mem. in Opp’n to Pl.’s Mot. to Set
Amount of Att’y Fees (Opp’n) 2–3, ECF No. 80.) By comparison, the Jorgensen Defendants
note that their counsel only expended a total of 8.2 hours on this discovery dispute. (Id. at 2,
ECF No. 80.) RFC counters that the discovery dispute, though fundamentally simple, arose after
the Jorgensen Defendants denied the existence of relevant discovery, forcing RFC to undertake
the effort and expense of subpoenaing a third party to prove the existence of the documents.
(Reply in Support Pl.’s Mot. to Set Amount of Att’y Fees (Reply) 2, ECF No. 84.) RFC also
asserts that their counsel collaborated but did not duplicate time, and that the fees identified fall
within the parameters outlined in the Court’s Order. (Id. at 3, ECF No. 84.)
“[W]hen examining an attorney’s fee claim, the district court should examine the hours
spent on each task to determine the reasonableness of the hours reported.” Shaw v. AAA Eng’g
& Drafting, Inc., 213 F.3d 538, 542 (10th Cir. 2000). Generally, “[w]hat is reasonable in a
particular case can depend upon factors such as the complexity of the case, the number of
reasonable strategies pursued, and the responses necessitated by the maneuvering of the other
side.” Id. (quoting Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983), overruled on other
grounds by Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 483 U.S. 711 (1987)).
After reviewing RFC’s itemized ledger, the Court finds reasonable the hours expended by RFC’s
counsel related to this discovery dispute. RFC only included work related to identifying this
particular discovery issue, communicating with counsel, filing and arguing the Motion to

2

Compel, following up with counsel to secure the relevant documents after the hearing, and
submitting a proposed order to this Court. (See Decl. of Jessica P. Wilde 3, ECF No. 75.)
“Evidence of the hours expended by opposing counsel may be helpful in determining whether
time expended on a case was reasonable, but the opponent’s time is not an ‘immutable yardstick
of reasonableness.’” Shaw, 213 F.3d at 543 (quoting Robinson v. City of Edmond, 160 F.3d
1275, 1284 (10th Cir.1998)). RFC’s counsel necessarily and reasonably incurred greater hours
than the Jorgensen Defendants by their efforts to identify the discovery issue, resolve it among
the parties out of court, and ultimately bring the dispute to the attention of the Court through a
motion to compel. (See Decl. of Jessica P. Wilde 2–3, ECF No. 75.) The Court also finds Ms.
Wilde and Mr. Francis’s collaboration on this discovery matter not duplicative. As the Tenth
Circuit has noted, “[t]ime spent by two attorneys on the same general task is not . . . per se
duplicative. Careful preparation often requires collaboration and rehearsal . . . .” Lockard v.
Pizza Hut, Inc., 162 F.3d 1062, 1077 (10th Cir. 1998) (quoting Rodriguez-Hernandez v.
Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998)). The two attorneys reasonably collaborated
on discussions and preparation around this discovery issue.
For the foregoing reasons, the Court hereby ORDERS the following:
1. Defendants Toni Jorgensen and Way Out West Restaurant Group, Inc. shall pay to
Plaintiff Rib City Franchising, within seven calendar days, the amount of $6,524.50,
corresponding to the attorney’s fees incurred in connection with work related to the
Motion.
2. Failure to pay this amount in full within seven days from the date of this order shall result
in immediate judgment in favor of Plaintiff Rib City Franchising.
DATED this _28th__ day of March, 2016.

3

BY THE COURT:

________________________
EVELYN J. FURSE
United States Magistrate Judge

4