United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER AWARDING ATTORNEY'S
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
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.
Law Regarding Attorney's Fees
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)).
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
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.
Id. at 2, 4. Plaintiff objects both to the number of
hours and the hourly rates Defendants request.
Time Expended on the Motion
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
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.
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 and Ms.
Harrison's time reduced from 15.3 to 11.4
hours. I find
that this amount of time is reasonable and not excessive,
redundant, or unnecessary.
Reasonable Hourly Rate
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.
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.”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 ...