Sartin et al v. Chula Vista Inc et al
Filing
119
ORDER signed by Magistrate Judge William E Duffin on 11/15/2021 GRANTING IN PART 79 Defendants Motion for Attorney Fees. The plaintiffs, jointly and severally, shall pay to Chula Vista Inc, CVR Management, LLC, and Michael Kaminski the sum of $8,674 not later than 28 days after the entry of judgment in this matter. (cc: all counsel)(lz)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH SARTIN, et al.,
Plaintiffs,
v.
Case No. 18-CV-1890
CHULA VISTA INC, et al.,
Defendants.
ORDER
Before the court is the motion of defendants Chula Vista, Inc., CVR Management,
LLC, and Michael Kaminski for attorney fees pursuant to Fed. R. Civ. P. 37(a)(5)(A).
(ECF No. 79.) The defendants’ motion was a result of the court’s order granting their
motion to compel. (See ECF Nos. 63, 78.) The defendants assert, “Since December of
2020, the legal fees incurred from representing the Chula Vista Defendants in the
preparation and argument of their Motion to Compel and supporting documents total
$9,172.00.” (ECF No. 80, ¶ 6.) This is comprised of 30.8 hours by Attorney Lohse at
$215.00 per hour and 10 hours by Attorney Hanus at $225.00 per hour. (ECF No. 80,
¶¶ 8-9.) In reply, the defendants reduce this amount to $9,107.50 (ECF No. 88 at 10),
which reflects the amount the defendants actually paid (ECF No. 88-1, ¶ 7).
Case 2:18-cv-01890-WED Filed 11/15/21 Page 1 of 5 Document 119
Rule 37(a)(5) “presumptively requires every loser to make good the victor's costs
….” Rickels v. City of S. Bend, 33 F.3d 785, 786 (7th Cir. 1994) (“The great operative
principle of Rule 37(a)(4) is that the loser pays.” (quoting Charles Alan Wright & Arthur
R. Miller, 8 Federal Practice and Procedure § 2288 at 787 (1970))). “Fee shifting when the
judge must rule on discovery disputes encourages their voluntary resolution and
curtails the ability of litigants to use legal processes to heap detriments on adversaries
(or third parties) without regard to the merits of the claims.” Id. at 787.
The court has “wide latitude” in setting an award of attorney’s fees. Divane v.
Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003). The plaintiff is entitled to recover his fees
for bringing the motion, reviewing the defendant’s response and the court’s decision,
and pursuing the motion for fees. See Schmitz v. Four D Trucking, Inc., 2015 U.S. Dist.
LEXIS 91586, 2-5 (N.D. Ind. July 13, 2015).
Plaintiffs respond:
It would be unjust to award Defendants the $9,172.00 in attorneys’ fees
they seek in connection with their motion to compel. (ECF No. 80).
Plaintiffs have meaningfully participated in discovery and had already
produced over a thousand responsive documents. Plaintiffs’ unintentional
withholding of a limited number of responsive documents did not
prejudice Defendants and it did not delay this case.
(ECF No. 86 at 1.)
If this were a simple matter of the plaintiffs having inadvertently failed to
provide a subset of documents, the time for addressing that failure was as part of the
pre-motion meet-and-confer. Having failed to fix the problem at that stage, the plaintiffs
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cannot avoid responsibility for the expenses the defendants incurred by having to resort
to a motion to compel. The absence of prejudice to the defendants in the form of delay
of the case or the need to redo depositions (see ECF No. 86 at 3) does preclude the award
of attorney fees. Attorney fees under Fed. R. Civ. P. 37(a)(5) are compensatory, not
punitive. “The rationale of fee-shifting rules is that the victor should be made whole-should be as well off as if the opponent had respected his legal rights in the first place.”
Rickels, 33 F.3d at 787 (emphasis omitted). Thus, the court does not find an award of
attorney fees to be unjust. See Fed. R. Civ. P. 37(a)(5)(A)(iii). The plaintiffs do not argue
Fed. R. Civ. P. 37(a)(5)(A)(i) or (ii) apply.
The plaintiffs’ alternative argument is that the court
should reduce the amount Defendants seek. Defendants merely provide
time records and note their counsel’s hourly rate—they do not provide
evidence of the reasonableness of the time spent in bringing their motion
to compel, and they do not provide evidence that the hourly rates are
reasonable. (ECF No. 81). Furthermore, the 10 hours spent by David
Hanus at a rate of $255 is duplicative of the 30.8 hours spent by associate
attorney Paige Lohse, who performed the substantive work on
Defendants’ motion. See id. It is therefore unfair to change Plaintiffs for his
work.
(ECF No. 86 at 2.)
In reply, defense counsel submitted a declaration addressing the reasonableness
of their hourly rates. (ECF No. 88-1.) Significant in establishing the reasonableness of
the hourly rate is the fact that the rate sought is the rate the defendants and other clients
have agreed to pay counsel. Moreover, based on the court’s experience in many similar
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matters, the court has no difficulty concluding that counsel’s hourly rates are
reasonable.
As for counsel’s specific billing entries, the court finds nothing improper or
excessive with the 4.6 hours that Attorney Hanus allocated to reviewing the work of
Attorney Lohse. It is routine for a partner to review an associate’s work. Similarly, the
court finds nothing improper or duplicative in Attorney Hanus also having to review
the plaintiffs’ response or to have analyzed issues for the reply.
The court finds only a single entry meriting scrutiny. Attorney Hanus attributed
1.7 hours on January 28, 2021 to what he described as, “Further analysis of issues and
deficiencies in plaintiffs' responses for motion.” (ECF No. 81-1 at 1.) The court
understands this as reflecting work done reviewing the sufficiency of the plaintiffs’
initial discovery responses.
Rule 37(a)(5)(A) allows for reimbursement of expenses related only to the motion
to compel. This is distinct from the expenses incurred in identifying the deficiencies in
the discovery responses that led to the motion to compel. The non-movant is
responsible for costs incurred only after the movant complies with its obligation to meet
and confer. The movant should have fully assessed and analyzed all deficiencies in the
non-movant’s discovery responses prior to the meet and confer. Thus, the court is not
persuaded that this expense for further analysis of the deficiencies in the plaintiffs’
responses was related to the motion to compel as opposed to work that should have
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been undertaken prior to the meet and confer. Accordingly, the court will exclude this
entry, reducing the defendants’ request by $433.50.
The court otherwise finds the expenses incurred as reasonable and appropriate
and will therefore order the plaintiffs to pay the sum of $8,674 to defendants Chula
Vista, Inc., CVR Management, LLC, and Michael Kaminski.
IT IS THEREFORE ORDERED that the motion for attorney fees by defendants
Chula Vista, Inc., CVR Management, LLC, and Michael Kaminski (ECF No. 79) is
granted in part. The plaintiffs, jointly and severally, shall pay to Chula Vista, Inc., CVR
Management, LLC, and Michael Kaminski the sum of $8,674 not later than 28 days after
the entry of judgment in this matter.
Dated at Milwaukee, Wisconsin this 15th day of November, 2021.
_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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