Mosaic Potash Carlsbad, Inc. v. Intrepid Potash, Inc.

          MEMORANDUM OPINION AND ORDER AWARDING REASONABLE EXPENSES

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff's request for reasonable expenses as the prevailing party on a motion for a protective order. On April 6, 2018, Plaintiff filed a motion for a protective order to prevent Defendants Intrepid Potash, Inc. and Intrepid Potash-New Mexico, LLC (“Defendants”) from inspecting its facilities. On May 18, 2018, the Court granted the motion and awarded reasonable expenses to Plaintiff pursuant to Fed.R.Civ.P. 37(a)(5). [Doc. 100]. On May 29, 2018, Plaintiff filed an Affidavit and supporting documents requesting expenses, including attorney's fees, in the amount of $22, 580.80. [Doc. 102]. Defendants filed objections on June 12, 2018. [Doc. 105]. Having considered the parties' submissions, and having reviewed other cases from this district involving the award of attorney's fees, the Court concludes that both the hourly rates and amount of time requested are excessive. The Court will award Plaintiff reasonable expenses in the amount of $7, 115.

         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 $22, 580.80 in attorney's fees for 64.7 total hours of work expended by five partners, two associates, and a paralegal at two law firms. [Doc. 102]. Plaintiff requests fees for roughly 27 hours of drafting and reviewing its motion; 15 hours of drafting and reviewing its reply; 17 hours of research; and 5 hours of other related work. See generally [Docs. 102-1, 102-2]. Defendants object to the reasonableness of both the number of hours expended and the hourly rates. [Doc. 105] at 3-5. The following is a breakdown of the hours expended and hourly fee rates requested for each of the attorneys and support staff.

Rate	Hours	Fee
Dorsey & Whitney LLP

Mr. Tahdooahnippah	$396	34.6	$13, 701.60
Mr. Zayed	$612	2.6	$1, 591.20
Mr. Brey	$270	10.4	$2, 808.00
Mr. Merker	$252	5.0	$1, 260.00

Kemp Smith LLP

Mr. High	$350	2.5	$875.00
Mr. Sanchez	$220	5.1	$1, 122.00
Ms. Morrow	$275	4.4	$1, 210.00
Ms. Sagaribay	$130	0.1	$13.00

TOTAL:

64.7

$22, 580.80

         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)).

         Plaintiff has submitted its attorneys' invoices for the time expended on its motion for a protective order and reply in support thereof. [Docs. 102-1, 102-2]. Defendants argue that the number of hours expended is excessive for a single motion and reply. [Doc. 105] at 3-4. They maintain it was unreasonable for seven attorneys, including five partners, to expend more than 60 hours on the motion and reply. Id. In particular, they note that the time spent by several partners reviewing and revising the filings was excessive in light of the fact that a partner (rather than a less experienced attorney) drafted the briefs in the first instance. Id. at 4. Moreover, Defendants note that Plaintiff requests fees for more than 15 hours of research but fails to show that such ...