Stiltner v. Cabell County Commission et al

Filing 73

MEMORANDUM OPINION AND ORDER granting in part Plaintiff's 45 PETITION for Attorney's Fees; directing Defendants, or their attorneys, to pay Plaintiff's attorney the sum of $1,625.00 within 30 days of the date of this Order. Signed by Magistrate Judge Cheryl A. Eifert on 4/1/2014. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CINDY M. STILTNER,
Plaintiff,
v.

Case No. 3:13-cv-07513

CABELL COUNTY COMMISSION; and
CABELL COUNTY SHERIFF’S DEPARTMENT,
Defendants .

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Petition for Attorney’s Fees. (ECF No.
45). Defendants have responded to the Petition, (ECF No. 69), indicating that they do
not specifically oppose the amount of fees sought by Plaintiff, but do reserve their
right to present evidence contesting the reasonableness of the hourly rate requested
by Plaintiff in regard to any future fee award in this or any other case.
Having considered the Petition and the response, the undersigned GRANTS
Plaintiff’s petition, in part, and awards her attorney’s fees in the amount of One
Thousand Six Hundred Twenty Five Dollars ($1625.00).
A.

Calculation of Hourly Rate

When calculating an award of reasonable fees and costs under Fed. R. Civ. P.
37, the Court must “determine a lodestar figure by multiplying the number of
reasonable hours expended times a reasonable rate.”
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Robinson v. Equifax

Information Services, LLC, 560 F.3d 235, 243 (4th Cir. 2009), citing Grissom v. The
Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008). The United States Court of Appeals
for the Fourth Circuit has identified twelve factors to consider when making this
determination, including the following:
(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, 560 F.3d at 243-244 (citing Johnson v. Ga. Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974)). In the context of an isolated discovery dispute, factors 1, 2,
3, 5, 9, and 12 are most germane to the analysis.
Plaintiff requests an hourly rate of $325.00, arguing that such a rate is
consistent with amounts awarded to other attorneys specializing in employment law.
Notably, Defendants have chosen not to contest the hourly rate in this instance.
Although the undersigned finds that $325.00 per hour is on the high end in this
jurisdiction for preparing and prosecuting routine discovery motions, the lower
hourly rates usually associated with such work may be explained by the fact that
simple discovery motions are generally assigned to young associates, who bill lower
hourly rates than more experienced attorneys. In this case, however, Ms. Hughes has
practiced a number of years, operates a small boutique law firm that primarily
accepts contingent-fee cases, and personally performed the tasks for which
reimbursement is sought. Considering the unique circumstances here, and given the
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lack of objection from Defendants, the undersigned accepts the hourly rate of
$325.00.
B.

Calculation of Hours

Having determined the reasonable hourly rate in this case, the undersigned
must examine the reasonableness of the number of hours expended on the motion to
compel and the motion for sanctions. While the time entries for both motions are
entirely reasonable, Plaintiff has also included time for communicating with defense
counsel regarding the status of discovery responses prior to filing the motion to
compel, and for review of the Defendants’ discovery responses. The Court does not
find these entries to be appropriate given that communication prior to filing a
discovery motion is a mandatory and routine task that often prevents the need for a
motion to compel. Thus, the undersigned does not consider such communications to
constitute “making the motion” under Rule 37(a)(5)(A). In addition, reviewing
Defendants’ discovery responses is an undertaking Plaintiff would necessarily have
performed in the ordinary course of prosecuting her case, and was not caused by
Defendants’ failure to timely answer the discovery requests. Accordingly,
reimbursement of the expenses associated with review time is not envisioned under
Rule 37(b)(2)(C), which allows only “reasonable expenses, including attorney’s fees,
caused by the failure.” (emphasis added).
Therefore, after subtracting the disallowed time entries, Plaintiff is entitled to
payment of five hours at the hourly rate of $325.00. Defendants, or their attorneys,
are hereby ORDERED to pay Plaintiff’s attorney, the sum of One Thousand Six
Hundred Twenty Five Dollar ($1625.00) within thirty (30) days of the date of
this Order.
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The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: April 1, 2014

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