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Auge v. Stryker Corp.

United States District Court, D. New Mexico

September 28, 2017

WAYNE KENNETH AUGÉ II, 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.

         THIS MATTER is before me on Defendants' request for reasonable expenses as the prevailing party on a motion to compel. Plaintiff filed a motion to compel on April 27, 2017. [Doc. 154]. On July 12, 2017, I denied the motion and awarded reasonable expenses to Defendants pursuant to Fed.R.Civ.P. 37(a)(5). [Doc. 170]. On July 24, 2017, Defendants filed a Declaration listing the time counsel had expended in responding to the motion. [Doc. 171]. Plaintiff filed objections on August 18, 2017. [Doc. 175]. 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. Hankel's time and $175 is a reasonable hourly rate for Ms. Harrison'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

         Defendants request $7, 962 in attorney's fees, comprising time expended by counsel, Aaron Hankel, and his associate, Ashley Harrison, in opposing the motion to compel and preparing the instant fee application. [Doc. 171] at 2, 4, 11. Defendants request fees for a total of 24.9 hours of work (9.6 hours for Mr. Hankel and 15.3 hours for Ms. Harrison) at hourly rates of $364 for Mr. Hankel and $292 for Ms. Harrison.[2] Id. at 2, 4. Plaintiff objects both to the number of hours and the hourly rates Defendants request.

         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 attorneys' fees may include compensation for work performed in preparing and presenting the fee application.” Id. at 1254 (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir. 1986)).

         Defendants submitted detailed tables of the time Mr. Hankel and Ms. Harrison expended in opposing the motion. [Doc. 171] at 2-5. Plaintiff argues that the number of hours is excessive for a single responsive brief to a motion to compel. [Doc. 175] at 2-4. As a general matter, Plaintiff notes that the award Defendants request is 25% more than I previously awarded to Plaintiff for successfully opposing a discovery motion. Id. at 2. And, in contrast to that dispute, there was no oral argument in this instance. Id. Plaintiff identifies “[b]y way of example only” several time entries that he believes are excessive, including an ambiguous entry for “analyzing additional arguments, ” time spent revising the brief in excess of the time spent drafting it, and time billed by Ms. Harrison on a conference call in excess of the time billed by Mr. Hankel for the call. Id. at 3-4.

         The Court is mindful of, as Defendants put it, “the gravity of the disruptive burdens associated with the discovery sought” and the importance of successfully opposing the motion to compel. See [Doc. 171] at 6. The Court likewise recognizes that significant time was required to determine the temporal and logistical burdens of obtaining the information sought. Id. Defendants' effort is reflected in their response, which included several exhibits. Nevertheless, the Court finds that the time expended in responding to a six-page motion concerning a single request for production appears excessive. I conclude that Mr. Hankel's time should be reduced from 9.6 to 8.6 hours[3] and Ms. Harrison's time reduced from 15.3 to 11.4 hours.[4] I find that this amount of time is reasonable and not excessive, redundant, or unnecessary.

         The Reasonable Hourly Rate

         “To determine what constitutes a reasonable rate, the district court considers the prevailing market rate in the relevant community.Lippoldt, 468 F.3d at 1224. “The rate must reflect rates that are reasonable in light of: (i) the attorney's level of experience; and (ii) the work the attorney performed.” XTO Energy, Inc. v. ATD, LLC, No. 14-cv-1021 JB/SCY, 2016 WL 5376322, at *10 (D.N.M. Aug. 22, 2016). In general, the “relevant community” is “the area in which the court sits.” Gottlieb v. Barry, 43 F.3d 474, 485 n.8 (10th Cir. 1994). The court must look to the parties' evidence of the prevailing market rate. Case, 157 F.3d at 1257. It is typically established through the affidavits of local attorneys who practice in the same field as the attorneys seeking the fees. See, e.g., United Phosphorus, 205 F.3d at 1232 (“In addition [to submitting an affidavit from the attorney requesting fees], United submitted one affidavit from another attorney in Kansas City who reviewed the rates, stating the rates were within the range of what attorneys with comparable skills and experience practicing trademark infringement law in the Kansas City area would charge.”); XTO Energy, 2016 WL 5376322, at *5-7 (discussing affidavits submitted by attorneys practicing similar legal work in New Mexico); Martinez ex rel. Est. of Martinez v. Salazar, No. 14-cv-0534 KG/WPL, 2016 U.S. Dist. LEXIS 57269, at *2 (D.N.M. Apr. 28, 2016) (“Plaintiff supported Coberly's declaration with the resumes of Coberly and Chakeres as well as with a declaration by Daniel Yohalem, a New Mexico attorney, who opined as to the prevailing market rates for attorneys like Coberly and Chakeres.”). If the court lacks adequate evidence to determine the prevailing market rate, it may use other factors, including its own knowledge, to establish the rate. Case, 157 F.3d at 1257.

         Defendants argue that the hourly rates of $364 for Mr. Hankel and $292 for Ms. Harrison-the respective rates at which their time is billed in this matter-are appropriate. They contend that their requested rates are “reasonable in view of the prevailing market rates in the Kansas City, Jackson County, and Missouri legal markets.” [Doc. 170] at 7. As evidence, Defendants submit excerpted data from the Missouri Bar's 2015 Economic Survey Report showing that “approximately 37% of Missouri . . . trial attorneys charge rates that are above” $300 per hour, Defendants' “effective blended rate.”[5]Id.; [Doc. 170-3]. Defendants also submit excerpts from the American Intellectual Property Law Association's 2015 Report of the Economic Survey, which shows average hourly billing rates for intellectual property attorneys broken out by level of experience. [Doc. 170] at 9-10; [Doc. 170-4]. Defendants assert that the report shows Mr. Hankel's and Ms. Harrison's respective billing rates to be in line with the average billing rates ...


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