United States District Court, D. New Mexico
ENVIRONMENTAL DIMENSIONS, INC., A New Mexico Corporation, Plaintiff,
v.
ENERGYSOLUTIONS GOVERNMENT GROUP, INC. n/k/a Atkins Energy Government Group, Inc., a foreign for profit corporation, Defendant.
MEMORANDUM OPINION AND ORDER
JERRY
H. RITTER U.S. MAGISTRATE JUDGE
This
matter comes before the Court on Defendant Atkin Energy's
Motion for Attorneys' Fees Associated with Filing Motion
to Compel (Doc. 57), filed March 15, 2018. Having considered
the parties' positions and all pertinent authority, the
Court will grant the Motion in part.
I.
BACKGROUND
Defendant
filed its Motion to Compel Discovery Responses to
Interrogatories Nos. 6, 8, and 11; Request for Admission No.
2; and Requests for Production Nos. 7 and 13 on December 1,
2017. See Doc. 38. After recounting the lengthy meet and
confer process the parties engaged in, the Court granted the
Motion to Compel in full, finding that “Plaintiff only
adequately responded to the three interrogatories at issue
after Defendant was forced to file its Motion to Compel. . .
. Plaintiff only properly responded to responded to
Defendant's requests for production after the instant
Motion was filed. . . . [And] the Court will deem admitted
Defendant's second request for admission.” Doc. 50
at 10-11. Having granted the Motion in full, the Court was
compelled by Federal Rule of Civil Procedure 37(a)(5)(A)
“after giving an opportunity to be heard, ” to
order the payment of Defendant's “reasonable
expenses incurred in making the motion, including
attorney's fees.” See Id. As such, the
Court invited Defendant to file a motion seeking its costs
and fees associated with the filing of the Motion to Compel.
The Court further invited Plaintiff to respond, directing it
to explain “why the requested costs and fees were not
reasonably expended or why the imposition of sanctions would
be unjust.” Doc. 50 at 12.
Defendant
filed its Motion for Fees as required. Doc. 57. Attached to
the Motion is an affidavit requesting that Plaintiff pay $12,
144.50 in attorney's fees associated with the Motion to
Compel. Doc. 57-1. The affidavit does not specifically break
down the tasks that were spent preparing the Motion to
Compel; rather, Defendant's counsel (Mr. Barnett) avers
that
[t]he time spent by my firm, Holland & Hart LLP, and me
to bring [Defendant's] Motion to Compel Discovery
Responses from [Plaintiff], includes, among other tasks: (a)
evaluating deficiencies in [Plaintiff's] discovery
responses; (b) conferring with local counsel regarding New
Mexico local rules; (c) drafting and revising Motion to
Compel; (d) reviewing and evaluating supplemental responses
from [Plaintiff] produced in response to Motion to Compel;
(e) address concerns regarding [Plaintiff]'s erroneous
extension of time to file opposition; (f) reviewing and
evaluating [Plaintiff]'s opposition brief; (g) drafting
and revising reply brief in support of Motion to Compel; (h)
review communications with opposing counsel as support for
Motion to Compel; and (i) prepare exhibits for Motion to
Compel[.]
Doc. 57-1 at 2. The affidavit then requests fees for four
separate attorneys: James Barnett (14.8 hours), Elizabeth
Rudolf (21.9 hours), Robert Sutphin (0.4 hours), and Julia
Broggi (1.3 hours), at rates ranging from $230/hour to
$450/hour.
As
Defendant recognizes in its Reply brief, Plaintiff's
Response does not challenge the amount of fees requested.
See generally Doc. 62; Doc. 68 at 1. Rather,
Plaintiff takes the position that Defendant's request for
fees should be taken in context with “its abject
refusal to provide any discovery on Plaintiff's Complaint
allegations and only providing such discovery that covers and
pertains to Defendant's counterclaim.” Doc. 62 at
2. Plaintiff further argues that Defendant has
“persisted in engaging in length (sic) written
communications when the simple answers to Plaintiff's
(sic) requests are available by phone call.”
Id. at 3. Plaintiff then shifts gears, stating that
“the organic basis for any omission or delay in
discovery responses by Plaintiff to Defendant is more
grounded in personal issues which Plaintiff has only recently
shared with his counsel.” Id. at 5. Plaintiff
explains in an affidavit that its sole remaining employee
(Mr. Bradshaw) suffered major medical issues during the
summer and fall of 2017 and that his illness
“reasonably impacted the discovery efforts of Plaintiff
in the case.” Doc. 62 at 5-6; see generally
Doc. 62-1. Nonetheless, Mr. Bradshaw acknowledges that he did
not inform Plaintiff's counsel of his medical issues
until February 2018, and that he “is fully aware of his
obligation to move the case forward[.]” Doc. 62-1 at 1,
2.
As to
Plaintiff's arguments about the “context” of
the instant discovery dispute, Defendant responds that
“[t]his is not the proper forum for [Plaintiff] to make
such allegations, ” given that Plaintiff's
contentions are currently being litigated in a separate set
of motions currently pending before the Court. Doc. 68 at 2.
Regarding Plaintiff's contention that relief was a mere
phone call away, Defendant replies that its actions were
necessary to “illustrate for the Court
[Plaintiff]'s dilatory non-compliance with its discovery
obligations” and were otherwise proper because it
waited nearly a year after its discovery requests were served
to file its Motion to Compel. Id. at 2-3. Moreover,
Defendant argues that the Court's imposition of sanctions
is not unjust in these circumstances and that the absence of
Mr. Bradshaw does not justify Plaintiff's failure to
respond to discovery. Id. at 3-6. Most basically,
Defendant argues that had Plaintiff disclosed Mr.
Bradshaw's illness prior to the instant briefing, it
“could have made accommodations as necessary and
appropriate.” Id. at 7. More to the point,
Defendant argues that Mr. Bradshaw's illness does not
explain Plaintiff's failures, given that it served its
requests in December 2016, and its first meet and confer
letter in February 2017, “both long before the onset of
Bradshaw's illness.” Id. Finally,
Defendant argues that “Bradshaw's illness does not
explain the repeated technological errors, including three
incorrect thumb drives, and postage mishaps that further
delayed [Defendant] receiving its requested discovery.”
Id.
II.
LEGAL STANDARDS
“The
rules should deter the abuse implicit in carrying or forcing
a discovery dispute to court when no genuine dispute
exists.” Centennial Archaeology, Inc. v. AECOM,
Inc., 688 F.3d 673, 680 (10th Cir. 2012) (quoting 1970
committee notes to Rule 37(a)(4)). As a consequence, Federal
Rule of Civil Procedure 37 contains provisions that
“allow, and often require” the Court to award
attorney fees for discovery misconduct. Id. at 678.
Under Rule 37(a)(5)(A),
[i]f the motion is granted - or if the disclosure or
requested discovery is provided after the motion was filed -
the court must, after giving an opportunity to be
heard, require the party or deponent whose conduct
necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees.
But the court must not order this payment if . . . (ii) the
opposing party's nondisclosure, response or objection was
substantially justified; or (iii) other circumstances make an
award of expenses unjust.
Fed. R.
Civ. P. 37(a)(5)(A) (emphasis added). In other words,
“[t]he great operative principle of Rule 37(a)(5) is
that the loser pays, ” In re Lamey, 2015 WL
6666244 at *4 (D.N.M. 2015) (quoting Wright, Miller &
Marcus, Federal Practice and Procedure (3d ed.
2010), § 2288, n.17), unless the failure to respond was
substantially justified or an award or expenses would
otherwise be unjust. Id. at *5.
In the
event that the Court determines that fees must be awarded,
the burden shifts to the applicant to “prove and
establish the reasonableness of each dollar, each hour, above
zero.” JaneL. v. Bangerter, 61 F.3d
1505, 1510 (10th Cir. 1995) (citation omitted); see Diaz
v. Metzgar, 2014 WL 12782782 at *7 (D.N.M. 2014)
(“The fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours
expended and hourly rates.”) (quoting Mares v.
Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir.
1986)). The Court will then reach a “lodestar figure,
” which is the product of reasonable hours expended
times a reasonable hourly rate. See Mares, 801 F.2d
at 1201. “The setting of a reasonable hourly ...