Environmental Dimensions, Inc. v. Energysolutions Government Group, Inc.

          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 ...