FLAME S.A. v. INDUSTRIAL CARRIERS, INC. et al
Filing
498
MEMORANDUM OPINION AND ORDER re: 385 First MOTION for Attorney Fees for Award of Attorneys' Fees and Costs by FLAME S.A.. Plaintiff Flame's Motion for Award of Attorneys' Fees and Costs, ECF No. 385, is GRANTED IN PART, and Flame is awarded reasonable attorneys' fees in the amount of $10,000. It is so ORDERED. Signed by Magistrate Judge Lawrence R. Leonard and filed on 9/25/14. Copies distributed to all parties 9/26/14.(ldab, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
FLAME S.A.,
Plaintiff,
GLORY WEALTH SHIPPING PTE LTD.,
Consolidated Plaintiff,
CIVIL ACTION NO. 2:13-cv-658
v.
INDUSTRIAL CARRIERS, INC., et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On April 30, 2014, the Court issued its Order, ECF No. 210, ("the April 30 Order")
granting in part, denying in part, and deferring in part Plaintiff Flame S.A.'s ("Flame") third
motion to compel discovery from Freight Bulk Pte LTD ("FBP"), ECF No. 179, and granting in
part and denying in part Flame's fourth motion to compel discovery from FBP, ECFNo. 181. In
its third motionto compel, Flame requested attorneys' fees and costs pursuant to Federal Rule of
Civil Procedure 37 ("Rule 37"). In the April 30 Order, the Court found that FBP's position was
not substantially justified and that an award of reasonable expenses was not unjust, and directed
Flame to submit a motion substantiating its costs and fees pursuant to the factors enumerated in
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,43-44 (4th Cir. 2009). ECF No. 210 at 7-8.
Several months later, Flame did so. Now before the Court is Flame's First Motion for Attorneys'
Fees and Costs with a brief in support filed on August 12, 2014. ECF Nos. 385-86. This motion
seeks an award of fees and costs in connection with Flame's third and fourth motions to compel,
which were the subject of the Court's April 30 Order, and also in connection with its first motion
to compel, which was granted by this Court in its prior Order issued on April 10, 2014, ECF No.
149 ("the April 10 Order"). FBP filed a response to Flame's motion on August 18, 2014, ECF
No. 405, and Flame filed a reply on August 22, 2014, ECF No. 419. Having been fully briefed,
the Motion is ripe for disposition.
I. PROCEDURAL BACKGROUND
A.
Prior Discovery Motions
Flame's first motion to compel discovery was filed on December 13, 2013, and sought,
inter alia, evidence relevant to Flame's theory that the named defendants were all "alter-egos"
for each other. ECF No. 25. Flame sought an Order overruling FBP's objections to certain of
Flame's First Request for Production of Documents ("RFP") and compelling FBP to produce
responsive documents. ECF No. 26 at 1. Flame did not move for its reasonable expenses in this
motion. See ECF Nos. 25, 26. Flame filed a second motion to compel discovery on March 5,
2014. ECF No. 92. This second motion to compel involved Flame's First Interrogatories,
Second RFP, and Notice of Entry Upon Vessel, directed to FBP, and again sought evidence
relevant to the alter-ego theory. Id. at 1. Flame sought as relief an Order overruling FBP's
objections and compelling FBP to respond, and granting Flame immediate entry aboard the
attached vessel and permission to examine electronically stored information of FBP aboard the
vessel, in accordance with its request to inspect under Federal Rule of Civil Procedure 34 ("Rule
34"). ECF No. 93 at 3-13. Flamedid not move for reasonable expenses in this motion. See ECF
Nos. 92, 93.
The Court held a hearing on the two motions to compel on April 9, 2014 ("April 9
hearing"). ECF No. 148. At the hearing and in a subsequent Order issued the next day, the
Court found that the alter-ego theory was relevant and an appropriate subject of discovery with
respect to the named defendants, and therefore granted Flame's first motion to compel. Id; ECF
No. 149. However, it denied the second motion to compel because it had been filed before
FBP's responses to the discovery were even due. ECF No. 149 at 2. At the conclusion of the
hearing, the Court directed the parties to a conference room and ordered them to meet and confer
immediately thereafter regarding their outstanding discovery issues. ECF Nos. 148, 147 at 2224. Neither Flame nor FBP moved for reasonable expenses pursuant to Rule 37 during the
hearing, even though they were each successful on one motion. See ECF No. 147.
B.
Discovery Motions Decided by the Court's April 30 Order, Which Awarded
Reasonable Expenses to Flame.
Unable to reconcile their differences following the Court-ordered meet-and-confer, Flame
filed its third, ECF No. 179, and fourth, ECF No. 181, motions to compel discovery on April 21,
2014. Flame's third motion to compel basically reiterated its second motion compel, once again
seeking responsive answers and documents from FBP to Flame's First Interrogatories and
Second RFP, but this time it had FBP's responses to discovery in hand. ECF No. 179. The
motion also sought, again, an Order granting Flame immediate entry aboard the attached vessel
and permission to examine electronically stored information of FBP aboard the vessel, in
accordance with its request to inspect under Rule 34. Id. at 4. Flame also requested attorneys'
fees and costs incurred in making the motion. Id. at 4-5.
In deciding Flame's third motion to compel, the Court reiterated its holding that the alterego theory was a relevant topic of discovery regarding the named defendants, and overruled
FBP's interrogatory objections and ordered it to answer all of the propounded interrogatories.
ECF No. 210 at 3-5. Of the sixty-seven contested RFPs, the Court ordered FBP to respond fully
to sixty-three of them, and to respond to a limited extent to two more. Id. at 5. It sustained
FBP's objections to two RFPs. Id. The RFPs to which the Court sustained FBP's objections
dealt with records sought to be produced strictly from entities that were not named defendants in
this action, and the Court sustained these objections because such discovery requests exceeded
the parameters of the April 10 Order. ECF No. 210 at 3-5. In the April 30 Order, the Court
again reiterated that the scope of permissible discovery was limited to the named defendants. Id.
at 5. The Court also deferred ruling on Flame's request for entry upon the vessel to give FBP the
opportunity to adequately respond to Flame's discovery requests.1 Id. at 6. Hence, the Court
granted in part, denied in part, and deferred in part Flame's third motion to compel. Id. at 7.
Flame's fourth motion to compel involved Flame's Third RFP. ECF No. 181. Flame did
not request attorneys' fees and costs incurred in making the motion, although it did ask for "all
other just and necessary relief." Id. at 2. In deciding the motion, the Court overruled FBP's
objections and ordered it to respond fully to twenty-eight contested RFPs, and to respond to a
limited extent to two more. ECF No. 210 at 6-7. It sustained FBP's objections to fourteen RFPs
for the same reason it sustained FBP's objections to the two RFPs in Flame's Second RFP, i.e., it
would not require FBP to produce documents from entities that were not named defendants. Id.
Hence, the Court granted in part and denied in part Flame's fourth motion to compel. Id. at 7.
C.
The Court's Award Granting Flame's Request for Fees in the April 30 Order.
At the end of its Order, the Court found that, having already ruled in its April 10 Order
that discovery regarding Flame's alter-ego theory was permissible, FBP's position in resisting
such discovery was not substantially justified, and an award of expenses was not otherwise
unjust. Id. at 7-8. Under its discretionary authority, the Court did award Flame the reasonable
expenses incurred in making both motions. Although the Court referenced Rule 37(a)(5)(A), it
should have referenced Rule 37(a)(5)(C), since the two motions addressed in the Order were
1The Court further advised that it would entertain a subsequent motion complying with Rule 34(b) should FBP not
adequately respond to the discovery requests. Id. at 6. Flame never sought such an order.
granted in part and denied in part. Id. While Rule 37(a)(5)(A) provides that the Court must
award reasonable expenses if the motion is granted (absent the exceptions delineated in subparts
(i-iii)), Rule 37(a)(5)(C) provides that the Court may apportion the reasonable expenses for the
motion if it is granted in part and denied in part (absent the same exceptions). Compare Rule
37(a)(5)(A), with Rule 37(a)(5)(C). Despite the predominant success Flame achieved in securing
relief, it nonetheless was not entirely successful, as the Court sustained certain FBP objections
and refused to widen the parameters of its April 10 Order, which limited discovery to those
entities who were named defendants. See ECF No. 210.
In addition, it deferred ruling on
Flame's request for entry upon the vessel, ECF No. 210 at 6, and Flame never raised that issue
again. Finally, Flame's subsequent motion asking the Court to reconsider that part of the April
30 Order which sustained FBP's objections, ECF No. 232, demonstrates that even Flame
believed that it was not entirely successful in achieving the relief it sought. Accordingly, the
Court will appropriately apply Rule 37(a)(5)(C)'s direction to apportion the reasonable expenses
for the motions. See, e.g., Mitchell v. Nat'I R.R. Passenger Corp., 217 F.R.D. 53, 60 (D.D.C.
2003) (finding an apportioned award was appropriate when the movant prevailed on six out of
seven discovery issues).
II. ANALYSIS
A.
Rule 37 Standard for Awarding Fees and Expenses.
Having granted in part, denied in part and deferred in part Flames' third and fourth
motions to compel and awarded it the right to recover reasonable attorneys' fees and costs under
Rule 37(a)(5)(C), the Court turns first to the standards it must apply under this rule. As many
district courts have noted, the same factors guide a court's decision under both subsection
37(a)(5)(A) and 37(a)(5)(C). See, e.g., Stephenson v. Pfizer Inc., No. 1:13CV147, 2014 WL
3385213, at *2 (M.D.N.C. July 9, 2014) (citing Switch Commn'cns Grp. LLC v. Ballard, No.
2:ll-CV-285, 2011 WL 5041231, at +1 (D. Nev. Oct. 24, 2011)). "'Rule 37(a)(5)(C) effectively
incorporates the substantive standards of Rule 37(a)(5)(A)... that expenses of a discovery
motion may be imposed upon a party ordered to produce discovery where that party's conduct
necessitated the motion' unless the nondisclosure or objection was substantially justified or other
circumstances make an award of expenses unjust." Charter Practices Int'l, LLC v. Robb, No.
3:12CV1768, 2014 WL 273855, at *5 (D. Conn. Jan. 23, 2014) (quoting Rahman v. Smith &
Wollensky Rest. Grp., No. 06 CIV. 6198, 2009 WL 2169762, at *2 n.l (S.D.N.Y. July 21,
2009)). In addition, reasonable expenses may not be awarded if the movant filed the motion
before attempting in good faith to obtain the discovery without court intervention.
Rule
37(a)(5)(A)(i). Apart from Flame's certification that the parties did meet and confer, ECF Nos.
180 at 4-5, 182 at 2, as the Court's rules require, the undersigned's Order to the parties to meet
and confer over pending discovery matters immediately following the April 9 hearing, ECF Nos.
148, 147 at 22-24, satisfies the Court that a genuine attempt was made by Flame to resolve its
discovery disputes with FBP without court intervention, at least with respect to its third and
fourth motions to compel. Having found that FBP's position was not substantially justified with
respect to those parts of Flame's third and fourth motions to compel which were granted, and
that an award of reasonable expenses was not otherwise unjust, ECF No. 210 at 7, the Court next
turns to assess the reasonableness of the claimed attorneys' fees. The Court will also address
whether Flame is entitled to an award of reasonable expenses incurred in making its first motion
to compel, pursuant to Rule 37(a)(5)(A), since that motion was granted in the April 10 Order.
B.
Reasonableness of Claimed Attorneys' Fees
"District courts have discretion in determining attorneys' fees, but there must be
evidence supporting the reasonableness of these fees." United Mktg. Solutions, Inc. v. Fowler,
No. l:09-cv-1392, 2011 WL 837112, at *4 (E.D. Va. Mar. 2, 2011). The burden is on the party
requesting fees to establish their reasonableness. Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.
1990); Cook v. Andrews, 7 F. Supp. 2d 733, 736 (E.D. Va. 1998). The reasonableness of the
amount must be established "both by showing the reasonableness of the rate claimed and the
number of hours spent." Rehab. Ass'n ofVa., Inc. v. Metcalf, 8 F. Supp. 2d 520, 527 (E.D. Va.
1998). The Court evaluates the reasonableness of attorneys' fees by comparing the requested
amount to the lodestar amount, which is defined as a "reasonable hourly rate multiplied by hours
reasonably expended." Grissom v. Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008).
In deciding what constitutes a 'reasonable' number of hours and rate, [the Fourth
Circuit] has instructed that a district court's discretion should be guided by the
following twelve factors: (1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to properly perform the
legal services rendered; (4) the attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the attorney's expectations at
the outset of the litigation; (7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results obtained; (9) the
experience, reputation and ability of the attorney; (10) the undesirability of the
case within the legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and client; and (12)
attorneys' fees awards in similar cases.
Robinson v. Equifax Info. Sen's., LLC, 560 F.3d 235, 243-44 (4th Cir. 2009) (citation omitted).
Because this matter involves a discovery motion rather than the complete disposition of a case
after trial, the Court finds that the fourth, sixth, seventh, eighth,2 tenth, and eleventh factors are
not particularly applicable, leaving the Court to address the first, second, third, fifth, ninth and
twelfth factors. See SunTrust Bank v. Nik, No. 1:11CV343, 2012 WL 1344390, at *3 (E.D. Va.
2 With respect to the results obtained, the Court evaluates this factor as part of its obligation to apportion the
reasonable expenses for the third and fourth motions to compel pursuant to Rule 37(a)(5)(C).
7
Mar. 22, 2012). FBP opposes that part of Flame's request for fees which involves work
performed that was unrelated to the third and fourth motions to compel (the first factor). ECF
No. 405 at 2. Specifically, that includes objections to Flame's claim for fees and expenses
related to the first motion to compel and the attendant hearing on April 9, 2014. Id. FBP does
not object to the remainder of the fees claimed by Flame, nor does FBP challenge any of the
remaining factors delineated in Robinson and addressed by Flame in its motion for fees. Id. at 13. Flame replied to FBP's objection by explaining that it is entitled to an award of reasonable
expenses in connection with the first motion to compel since that motion was granted, and Rule
37(A)(5)(A) requires that the movant must be awarded its reasonable expenses. ECF No. 419 at
2-3. Impliedly acknowledging that it did not previously request fees and costs in its first motion
to compel,3 Flame further argued that there is no requirement that a movant request fees and
costs in its discovery motion for it to be awarded the same under Rule 37(a)(5)(A). Id. at 3
(citing Branch v. Bank of Am., 2013 U.S. Dist. LEXIS 56993, at *12-13 (D. Md. April 22,
2013)). Finally, Flame argued that the issues involved in its first motion to compel were
intertwined with the issues in the third and fourth motions, and therefore an award of its
reasonable expenses is appropriate. Id. at 4. With this backdrop, the Court addresses the
relevant factors in turn.
1.
Factor 1: The Time and Labor Expended
The primary contention between the parties in this particular dispute is whether Flame
should be able to recover its reasonable expenses in connection with its first motion to compel,
thus implicating the first factor, the time and labor expended. Inasmuch as the Court's April 30
Order was limited to the third and fourth motions to compel, the Court FINDS that, pursuant to
3 Flame did not address at all the fact that it did not request attorneys' fees for its fourth motion to compel, but
presumably it would rely on the same argument.
8
Rule 37(a)(5)(C), Flame is entitled to recover a portion of its reasonable expenses incurred in
connection with those two motions.
The Court further FINDS that Flame is not entitled to
recover such expenses in connection with the first motion to compel, even though that motion
was granted earlier, because, pursuant to Rule 37(a)(5)(A)(iii), "other circumstances make an
award of expenses unjust."
This Court is well familiar with the extensive and tortuous history of the discovery
disputes in this case. The April 9 hearing was held to address Flame's first and second motions
to compel FBP's complete responses to Flame's first interrogatories, first and second RFP, and
notice of entry upon vessel. Flame did not request fees in its motions, and the Court did not
award them on its own. While the Court granted the first motion to compel, which dealt only
with Flame's first RFP, it denied Flame's second motion to compel.
Hence, under Rule
37(a)(5)(A), Flame could have been awarded reasonable expenses for its first motion. However,
under Rule 37(a)(5)(B),'' FBP could have been awarded its reasonable expenses for the second
motion. This is especially so since Flame filed this second motion to compel before FBP's
responses to the discovery requests were even due. Under Eastern District of Virginia Local
Civil Rule 26(C), objections to discovery must be served within fifteen days after service of the
discovery. Flame served its first interrogatories, second RFP, and notice of entry upon vessel on
February 12, 2014. ECF No. 93 at 2. FBP timely served its objections on February 27, 2014,
id, as required by local rule, and its answers were due on March 14, 2014. See Fed. R. Civ. P.
34(b)(2)(A). Instead of waiting for FBP to provide its answers, however, Flame prematurely
4Rule 37(a)(5)(B) provides:
If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must,
after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay
the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion,
including attorney's fees. But the court must not order this payment if the motion was substantially
justifiedor othercircumstances make an award of expenses unjust.
filed its second motion to compel on March 5, 2014. ECF No. 92. Rushing to the Court with a
discovery dispute before the other party even is required to provide its discovery responses
evidences the lack of a good faith effort to resolve discovery disputes without Court intervention,
as is required by this Court's rules. See Eastern District of Virginia Local Civil Rules 37(E),
(G).5 As a result, Flame's premature resort to Court intervention needlessly involved the Court
in an unnecessary discovery dispute. Consequently, under ordinary circumstances, an award of
fees and expenses to FBP and against Flame when its second motion to compel was denied
would have been appropriate under Rule 37(a)(5)(B) following the April 9 hearing.
However, that hearing also dealt with Flame's first motion to compel, wherein Flame
sought Court intervention regarding its first RFP.
This motion was granted as the Court
authorized discovery of Flame's alter-ego theory against the named defendants, and thus
required FBP to respond. ECF No. 149. While Rule 37(a)(5)(A) provides that reasonable
expenses must be awarded when a motion is granted, such expenses may not be awarded if the
resisting party's position was substantially justified, or if circumstances otherwise make an
award unjust. Rule 37(a)(5)(A)(i)-(iii). Certainly it can be argued that, at first, FBP's position in
resisting alter-ego discovery may have been substantially justified, as it argued, in opposing the
first motion to compel, that Flame had not yet met its burden to pursue alter-ego discovery. See
generally ECF No. 147. Although the Court ruled against Flame and in favor of FBP on this
issue, that does not mean that FBP's position, at this point in the case, was not substantially
5Eastern District of Virginia Local Civil Rule 37(E) provides:
Counsel shall confer to decrease, in every way possible the filing of unnecessary discovery motions. No
motion concerning discovery matters may be filed until counsel shall have conferred in person or by
telephone to explore with opposing counsel the possibility of resolving the discovery matters in
controversy.
Eastern District of Virginia Local Civil Rule 37(G) provides:
The presentation to the Court of unnecessary discovery motions, the presentation to another partyor non
party of unnecessary discovery requests of any kind, as well as any unwarranted opposition to proper
discovery proceedings, will subject such party to appropriate remedies and sanctions, including the
imposition of costs and counsel fees.
10
justified, and the Court made no specific finding in this regard. Regardless, the Court did find
that the parties' efforts to resolve their dispute did not satisfy their obligation to engage in a good
faith effort to do so. Id. at 22. Specifically, the Court found: "In reading the submissions that
the parties have made, it occurs to the Court that, although there may have been a half-hearted
effort to comply with the local rule that says you have to meet and confer, that that compliance
was, in fact, half-hearted." Id. It was for this reason that the Court ordered the parties to meet
and confer in a conference room outside the courtroom immediately after the hearing to try to
resolve their discovery dispute, especially in light of the ruling the Court had just made
authorizing discovery concerning the named defendants on the alter-ego theory. Id. at 22-23.
In sum, Flame lost the second of its two motions to compel which were argued at the
April 9 hearing. Flame's "good faith" effort to resolve the discovery dispute with FBP was
"half-hearted" at best, and FBP's position was not patently unreasonable at the time of the first
dispute. As a result, the Court FINDS that an award of reasonable expenses for Flame's first
motion to compel is unjust under the relevant circumstances.6
The Court next turns to the time and labor incurred in Flame's third and fourth motions to
compel, which the Court has found to be recoverable under Rule 37(a)(5)(C). Preliminarily, as
Flame argued supra, the Court agrees that it has discretionary authority to award reasonable
expenses under Rule 37 sua sponte, as the Court did with respect to Flame's fourth motion to
compel. FBP has not contested the point, and for good reason. See Chambers v. NASCO, Inc.,
501 U.S. 32,42 n.8 (1991) (listing a number of Federal Rules of Civil Procedure which "provide
for the imposition of attorney's fees as a sanction," including Rule 37, and holding that"[t]he
court generally may act sua sponte in imposing sanctions under the Rules"). In support of its
6 Further, although the issue was not raised by FBP, nonetheless the Court would apply a similar analysis to
conclude that an award of reasonable expenses to FBP after Flame's second motion to compel was denied would
also be unjust under the circumstances.
11
request for attorneys' fees and costs, Flame proffered billing records and declarations from two
of its attorneys, William R. Bennett, III with the Blank Rome LLP law firm, and Steven M.
Stancliff with the Crenshaw, Ware & Martin, P.L.C. law firm ("Crenshaw").7 ECF No. 386,
attachs. 1, 2. Since the rule authorizes the Court to "apportion the reasonable expenses for the
motion," Rule 37(a)(5)(C), the Court looks first to the time that was incurred in making the third
and fourth motions to compel, as reflected by the attorneys' billing records. Necessarily, the
Court also looks only to those entries incurred after the parties' Court-ordered meet-and-confer
session on April 9, 2014. The Blank Rome billing records show several conferences amongst
Flame attorneys, as well as between Flame's attorneys and consolidated Plaintiff Glory Wealth
Shipping Pte Ltd's ("Glory Wealth") attorneys, and providing the client with a status update,
between April 10 and April 18. Id., attach. 2 at 8-10. Besides the communication between co-
plaintiffs, these entries also included matters dealing with other motions before the Senior
District Judge,8 and communication with FBP's counsel, which hopefully reflected the parties'
attempt to resolve the discovery dispute without court intervention.9 None ofthese entries during
this time period reflect expenses "incurred in making the motion," and therefore are not
recoverable. Consequently, the billing entries which reflect time and labor actually expended on
the third and fourth motions to compel indicate Mr. Bennett billed a total of 20.6 hours for work
performed between April 19 and 28,2014. Id, attach. 2 at 10-13.
7Flame also provided the declaration of attorney Robert W. McFarland, who concluded generally that "the amount
of time spent by these attorneys for prosecuting these motions was reasonable." ECF No. 386, attach. 3, fl 11. Mr.
McFarlanddid not identify anywhere in his declarationto which motions he was referring.
8 See entry for 4/16/14 ("Multiple correspondence between parties re various motions pending before [Judge]
Doumar, notice of hearing set by [Judge] Doumar."). ECF No. 386, attach. 2 at 9.
9See entries for 4/11/14 ("numerous emails re discovery"), 4/14/14 ("Multiple correspondnece [sic] re FBP failure
to produce documents"), 4/15/14 ("Multiple correspondence with FBP counsel regarding discovery"), 4/16/14
("discovery issues with [former FBPcounsel] Mayer Brown"). Id. at 8-10. Communicating with opposing counsel
to resolve discovery disputes is part of the normal litigation process.
12
The Crenshaw billing entries, submitted with Mr. Stancliff s declaration, also show
multiple entries for matters between April 10 and 14, following the April 9 meet-and-confer,
which were not related to actual work performed in making the motions to compel. See ECF No.
386, attach. 1 at 10. According to the billing records, two attorneys, Messrs. Stancliff and
Hartnett, and one paralegal, Ms. Hunter, started performing work on the motions to compel on
April 16, and completed their work on April 23. Id. at 11-12. The records reflect attorneys
Stancliff and Hartnett billed 13 and 19.7 hours, respectively, and paralegal Hunter billed 2.9
hours. Id.
In its response in opposition to Flame's motion for award of attorneys' fees and costs,
FBP objected to Flame's claim for fees and costs unrelated to the third and fourth motions to
compel. ECF No. 405 at 2-3. It did not object to the time and labor incurred in pursuing those
two discovery motions, and in fact did not object to Flame's time incurred negotiating with FBP
prior to when its attorneys began drafting the motions. Id., attach. 1, 2.10 The Court has found
that only the time incurred in making the third and fourth motions to compel is recoverable, and
that time was incurred by Mr. Bennett between April 19 and 28, and by the Crenshaw attorneys
and paralegal between April 16 and 23. When Mr. Bennett's accumulated total of 20.6 hours is
added to those hours billed by Crenshaw, Flame spent 56.2 hours on the third and fourth
motions. The Court FINDS that, given the issues addressed by the motions, the 56.2 hours were
reasonable and supported by both the billing records and the declarations of Messrs. Bennettand
Stancliff."
10 FBP highlighted those entries of Flame's bills to which it objected and did nothighlight entries forthat time.
" The Court addresses the apportionment of reasonable expenses in Section II.B.3 of this Opinion.
13
2.
Remaining Factors
Although FBP did not contest the remaining relevant factors under Robinson, i.e., the
second, third, fifth, ninth and twelfth factors, nonetheless it remains Flame's burden to
demonstrate the reasonableness of what it seeks to recover. Plyler, 902 F.2d at 277. The Court
FINDS that Flame has met its burden. As to the second factor—the novelty and difficulty of the
questions raised—the Court FINDS that the issues raised in the motion were not particularly
unique and were of average difficulty compared to the ordinary discovery dispute. As detailed
supra, the Court, at the April 9 hearing and in its April 10 Order, delineated the parameters of
permissible discovery concerning the alter-ego theory. That Order, which was objected to by
FBP but affirmed by the Senior District Judge, required FBP to respond to discovery concerning
all of the named defendants. When it failed to do so, Flame brought FBP's non-compliance to
the attention of the Court, following a Court-ordered meet-and-confer, by means of its third and
fourth motions to compel. Consistent with its April 10 Order, the Court granted that part of
Flame's two motions directed to discovery of the named defendants, and denied that part of
Flame's motions that went beyond the April 10 Order. Hence, the dispute was not especially
complex under the circumstances.
The remaining four factors the Court must consider here in determining Flame's fee
request all impact the hourly rate at which Flame seeks reimbursement for its attorneys and
paralegal. The billable rates Flame has sought for the attorneys and paralegal, for which the
Court will grant an award, are set forth in the following chart:
Attorney
Billable Rate
$325
$285
$210
William R. Bennett III
Steven M. Stancliff
Douglas C. Hartnett
Paralegal
Stephanie Hunter
Billable rate
$125
14
ECF No. 386 at 4. For the reasons discussed infra, the Court FINDS that the hourly rates sought
by Flame for its attorneys and paralegal are reasonable and customary.
The Court starts with the third factor, the skill required to properly perform the legal
services rendered. Upon review of Flame's submissions, a fair amount of skill, which was ably
demonstrated, was required to properly perform the legal services rendered. Flame prepared a
memorandum in support of each of the two motions to compel that were at issue, which were
capably done and provided appropriate evidentiary support. ECF Nos. 180, 182. The Court
therefore evaluates this factor in Flame's favor.
Concerning the fifth factor, the Court finds it appropriate to consider, in addition to the
declarations of Mr. Bennett and Mr. Stancliff, the declaration of Mr. McFarland, ECF No. 386,
attach. 3, a local attorney who is not counsel in this case, to determine the customary fee for like
work in the Hampton Roads area of Virginia. See Robinson, 560 F.3d at 245 (finding that
"[e]xamples of the type of specific evidence that [the Fourth Circuit] ha[s] held is sufficient to
verify the prevailing market rates are affidavits of other local lawyers who are familiar both with
the skills of the fee applicants and more generally with the type of work in the relevant
community"). Mr. McFarland testified by declaration that the hourly rates charged by each of
the attorneys who worked on this matter are either commensurate with or lower than the
customary rates that attorneys with similar experience would charge to handle similar matters in
the Norfolk Division of this Court. ECF No. 386, attach. 3 at 2-3, fl| 8-12. Mr. Stancliff averred
similarly in his declaration, along with opining that paralegal Hunter's billable rate is also
reasonable and consistent with the market for legal services in similar matters in Norfolk,
Virginia. Id., attach 1 at 3, ^[14. Accordingly, the Court evaluates this factor in Flame's favor.
15
With respect to the ninth factor, neither the declarations of Mr. Bennett, Mr. Stancliff, nor
Mr. McFarland addressed the experience, reputation and abilities of the attorneys, or of Ms.
Hunter.12 ECF No. 386, attach. 1-3. It is the fee movant's burden to "produce satisfactory
evidence" of the attorneys' experience, Blum v. Stenson, 465 U.S. 886, 895 n.ll (1984), which
requires "affidavits of other local lawyers" to testify to the attorneys' skill and experience,
Robinson, 560 F.3d at 245.
Flame provided no such specific evidence; however, Flame's
memorandum in support of its motion for an award of fees and costs did provide the Court with
information regarding this factor, and represented the significant experience and reputation of the
attorneys. ECF No. 386 at 4-5. This information should have been provided for the Court's
consideration by means of external evidence, i.e. affidavits, rather than by representations in a
legal memorandum. See, e.g., Mostaed v. Crawford, No. 3:1l-cv-00079, 2012 WL 3947978, at
*6 (E.D. Va. Sept. 10, 2012) (denying plaintiffs' motion for attorneys' fees, in part, because
plaintiffs produced only the affidavits of their own lawyers and failed to offer unbiased, external
evidence of the fees' reasonableness).
Nonetheless, FBP did not contest the experience,
reputation and abilities of the attorneys, so the Court accepts the representations in Flame's
memorandum and therefore evaluates this factor in Flame's favor.
Finally, with respect to the twelfth factor—attorneys' fees awards in similar cases—
Flame referred the Court to Stewart v. VCU Health Sys. Autk, 2012 U.S. Dist. LEXIS 47355
(E.D. Va. Apr. 3, 2012) and Pake, LLC v. Hundai Motor Co., 2014 U.S. Dist. LEXIS 95043 (D.
Md. June 27, 2014), two cases in which the movants were awarded $28,547.25 and $35,000,
respectively, for prevailing in contested discovery disputes. Of course, these cases are not
directly on point because they were both decided pursuant to Rule 37(b)(2)(C) based on the
12 Mr. McFarland did generally conclude that the "partners and attorneys" at the Crenshaw firm enjoyed a superb
reputation and are experiencedand highlycapable. ECFNo. 386, attach. 3 at 2, lf6.
16
parties' failure to comply with court orders, and thus the movants' fee awards were not
apportioned. Paice, LLC, 2014 U.S. Dist. LEXIS 95043, at *37-51, 80; Stewart, 2012 U.S. Dist.
LEXIS 47355, at *5. Nonetheless, the Court considers them in determining what fee award is
appropriate in this case.
3.
Summary and Apportionment Pursuant to Rule 37(a)(5)(C)
Having determined it appropriate to apply the requested billable rates to the hours
authorized in Section U.BA, supra, the Court calculates the initial lodestar amount as set forth in
the following chart:
Attorney/Paralegal
Billable Rate
Hours allowed
Total
20.6
Hartnett
$325
$285
$210
Hunter
$125
2.9
$6695.00
$3705.00
$4137.00
$362.50
56.2
$14,899.50
Bennett
Stancliff
13.0
19.7
Grand Totals
The Court's task does not end here, however, as it must determine what apportionment is
proper under Rule 37(a)(5)(C). As noted in Section LB, supra, Flame's third motion to compel
was granted in part, denied in part and deferred in part. The Court overruled sixty-three of
FBP's sixty-seven RFP objections, overruled in part two of them, and sustained two of them.
ECF No. 210 at 5. It did not grant Flame's request for entry upon the vessel. A/.at 6. Flame's
fourth motion to compel was granted in part and denied in part. Id. at 7. The Court overruled
twenty-eight of FBP's forty-four objections, overruled in part two of them, and sustained
fourteen of them.13 Id. Somewhat ironically, it was Flame who unsuccessfully moved the Court
to reconsider that part of its Order wherein the Court sustained FBP's objections. See ECF Nos.
232, 274.
"[Ultimately, '[t]he matter of attorney fees rests, of course, within the sound
13 From a straight statistical point of view, the Court fully overruled 94% of FBP's discovery objections in Flame's
third motion to compel and 63% of FBP's discovery objections in Flame's fourth motion to compel. It deferred
ruling on Flame's request for entry upon vessel, which cannot be quantified statistically butnonetheless constitutes
an unsuccessful request for relief on Flame's part.
17
discretion of the [court], who is in the best position to determine whether,... [and to what
extent], they should be awarded.'" Guidry v. Clare, 442 F. Supp. 2d 282, 295 (E.D. Va. 2006)
(quoting Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1458 (Fed. Cir. 1984)).
Therefore the Court, exercising its discretion under Rule 37(a)(5)(C), FINDS that Flame should
be awarded approximately two-thirds of the pertinent attorneys' fees it incurred, which the Court
has found to be properly recoverable in making the third and fourth motions to compel, for an
amount totaling $10,000. Such an apportionment is in accord with other cases which have
considered appropriate apportionments under Rule 37(a)(5)(C). See e.g. Stephenson, 2014 WL
3385213, at *5 (reducing the movant's award of expenses by 25% "to account for Defendant's
limited success" on 10 of the discovery requests); Procaps S.A. v. Patheon, Inc., Civ. No. 12-
24356, 2013 WL 6238647, at *11 (S.D. Fla. Dec. 3, 2013) (awarding 40% of expenses to the
movant because the movant was successful on 6 out of 15 discovery requests); S2 Automation,
LLC v. Micron Tech., Inc., Civ. No. 11-0884, 2012 WL 3656454, at *42-43 (D.N.M. Aug. 9,
2012) (awarding the movant 80% of the attorneys' fees and costs, even though "it is difficult to
precisely quantify the degree to which [the movant] has prevailed," because the court granted
"the majority" of movant's requests andthe movant "prevailed on all of what the Court perceives
to be its most significant requests"); Mitchell, 217 F.R.D. at 60 (D.D.C. 2003) (finding a
deduction of 14% to be appropriate when the movant prevailed on six out of seven discovery
issues); Cal Dive Int'l, Inc. v. M/V Tzimin (Ex Stena Seahorse), 127 F.R.D. 213, 217-18 (S.D.
Ala. Aug. 18, 1989) (awarding 70% of expenses to the movant because the court granted 57 out
of 81 items presented in the motion to compel).
18
C.
Costs
In addition to attorneys' fees, costs may be recovered if those costs were incurred in
making the motions to compel. Flame has sought costs in the amount of $927.49. ECF No. 386
at 8, and attach. 2 at 26. However, those costs cannot be said to have been incurred in making
the motions, as they were incurred on February 20, April 1 and April 6, 2014, well before Flame
began working on the third and fourth motions to compel. Accordingly, the Court FINDS that
Flame is not entitled to an award of costs.
III. CONCLUSION
Plaintiff Flame's Motion for Award of Attorneys' Fees and Costs, ECF No. 385, is
GRANTED IN PART, and Flame is awarded reasonable attorneys' fees in the amount of
$10,000.
The Clerk is DIRECTED to forward a copy of this Order to all counsel of record.
It is so ORDERED.
Lawrence RTLeonard
United States Magistrate Judge
Norfolk, Virginia
September 25,2014
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