United States District Court, D. New Mexico
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
|
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
|
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 ...