Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Auge v. Stryker Corp.

United States District Court, D. New Mexico

April 11, 2017

CLARKE COLL, Plaintiff, [1]
v.
STRYKER CORPORATION and HOWMEDICA OSTEONICS CORPORATION, Defendants.

          MEMORANDUM OPINION AND ORDER AWARDING ATTORNEY'S FEES

          STEPHAN M. VIDMAR, United States Magistrate Judge

         Defendants filed a motion to compel. [Doc. 67]. I denied the motion. [Doc. 123]. Because I found that the motion was not substantially justified, I told the parties I would award reasonable expenses under Rules 36(a)(6) and 37(a)(5). Id. at 2. Plaintiff filed a Declaration listing the time his counsel had expended on the motion. [Doc. 127]. Defendants filed objections. [Doc. 134]. Plaintiff requested permission to file a reply to the objections. See [Doc. 135]. I denied that request but allowed Plaintiff to file a supplemental declaration with case law from the District of New Mexico addressing the issue of the reasonable hourly rate to be applied. Id. Plaintiff filed a supplemental declaration. [Doc. 136]. Having considered the parties' submissions, and having reviewed other cases from this district involving the award of attorney's fees, I conclude that $350 is a reasonable hourly rate for Mr. Squires' time; $150 is a reasonable hourly rate for Mr. Wityak's time; and $125 is a reasonable hourly rate for Mr. Yobino's time. I will reduce the amount of time requested because I find that it is excessive.

         THE LAW REGARDING ATTORNEY'S FEES

         “To determine the reasonableness of a fee request, a court must begin by calculating the so-called ‘lodestar amount' of a fee, and a claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable' fee.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998). The lodestar is “‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, ' which produces a presumptively reasonable fee that may in rare circumstances be adjusted to account for the presence of special circumstances.” Anchondo v. Anderson, Crenshaw & Assoc., LLC, 616 F.3d 1098, 1102 (10th Cir. 2010) (quoting Hensley v. Ekerhart, 461 U.S. 424, 433 (1983), and Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 543-44 (2010)). “The party requesting attorney fees bears the burden of proving” the two components used to calculate the fee award: (i) “the amount of hours spent on the case;” and (ii) “the appropriate hourly rates.” United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000). Once the Court makes these two determinations, the fee “claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable' fee.” Robinson, 160 F.3d at 1281; see Malloy v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996). The party entitled to fees must provide the district court with sufficient information to evaluate prevailing market rates. See Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006)). Moreover, the party must also demonstrate that the rates are similar to rates for similar services by “lawyers of reasonably comparable skill, experience, and reputation” in the relevant community and for similar work. Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); see Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255- 56 (10th Cir. 1998). Only if the district court does not have adequate evidence of prevailing market rates for attorney's fees, may it, “in its discretion, use other relevant factors, including its own knowledge, to establish the rate.” Case, 157 F.3d at 1257; see also United Phosphorus, 205 F.3d at 1234 (A court abuses its discretion when its “decision makes no reference to the evidence presented by either party on prevailing market rate[, ]” and its rate decision is based solely on the court's “own familiarity with the relevant rates in this community.”).

         ANALYSIS

         Plaintiff requests $13, 512.50 in attorney's fees. [Doc. 127] at 2-4. The request includes time expended by counsel, Jeffrey L. Squires; his associate, Ryan Wityak; and his paralegal, Francisco Yobino. Id. The hours expended on the motion are broken down as follows.

11/7/2016

Review motion to compel and discuss with A. Hankel

1.0 hour

11/8/2016

Discuss research needs with Ryan Wityak

.4 hours

11/12/2016

Review case law research material and organize response

2.5 hours

11/13/2016

Begin drafting response to motion to compel

1.5 hours

11/14/2016

Draft portion of response

1.5 hours

11/15/2016

Draft and revise opposition to motion to compel

4.5 hours

11/16/2016

Draft and revise opposition to motion to compel

4.0 hours

11/17/2016

Final review and revisions to opposition to motion to compel

2.0 hours

12/26/2016

Prepare for hearing on motion

1.5 hours

2/27/2017

Attend hearing on motion

.8 hours

2/28/2017

Draft fee application

1.0 hours

3/01/2017

Review and revise fee application; meet with Ryan Wityak and Francisco Yobino

.8 hours

TOTAL

21.5 hours

Id. at 3. Mr. Wityak's time:

11/8/2016

Research on Rule 36 and analyzing cases

4.5 hours

11/10/2016

Research on scope of Rule 36 and coverage of legal issues

3.8 hours

11/14/2016

Research on treatment of alternative theories of contract breach

5.0 hours

11/15/2016

Research on good faith in contesting answers to requests

4.5 hours

2/28/2017

Research on inclusion of fees for preparation of application

.4 hours

TOTAL

18.2 hours

Id. at 4. Mr. Yobino's time:

2/27/2017

Attendance at hearing on RFA motion

.8 hours

TOTAL

.8 hours

Id. at 2-4.

         A. The Time Expended on the Motion

         Courts have an obligation to exclude hours not “reasonably expended” from the lodestar calculation. Malloy, 73 F.3d at 1018. There are two elements to the reasonableness inquiry: First, whether the attorney has exercised billing judgment and deleted excessive, unnecessary, or redundant fees from his or her fee application, and second, whether the fee award is reasonable in light of the success obtained. See Hensley, 461 U.S. at 434. The burden is on the party requesting fees to demonstrate that the time expended was indeed reasonable. Case, 157 F.3d at 1249. With respect to legal research performed, the party requesting fees must provide enough information to determine whether the research was related to successful issues and reasonably necessary. See id. at 1252. “An award of reasonable ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.