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

United States District Court, D. New Mexico

November 20, 2018

ENVIRONMENTAL DIMENSIONS, INC., A New Mexico Corporation, Plaintiff,
ENERGYSOLUTIONS GOVERNMENT GROUP, INC. n/k/a Atkins Energy Government Group, Inc., a foreign for profit corporation, Defendant.



         This matter comes before the Court on Defendant Atkins Energy's Motion for Attorney Fees Associated with Filing Motion to Compel [Doc. 79], filed July 12, 2018. Plaintiff EDi filed a Response [Doc. 82], and Defendant filed a Reply [Doc. 84]. Having considered the parties' positions and all relevant authority, the Court will grant Defendant's Motion in part.

         I) BACKGROUND

         Defendant filed its Motion to Compel Discovery Responses to Requests for Production Nos. 10, 15, 18, 19, and 20 on March 15, 2018. [See generally Doc. 56]. Plaintiff did not respond to the Motion to Compel, but instead supplemented its discovery responses - twice. [See Docs. 63, 65]. Defendant filed a Reply in support of the Motion to Compel on April 11, 2018, explaining that Plaintiff's responses remained deficient. [See generally Doc. 67]. The Court, accordingly, granted Defendant's Motion to Compel on June 28, 2018. [See Doc. 74].

         Having granted Defendant's Motion, the Court invited it to move for costs and fees associated therewith. [Id., p. 2]. Defendant filed the instant Motion as instructed, supported by the affidavit of Robert J. Sutphin, Defendant's local counsel. [See generally Docs. 79, 79-1]. In the Motion, Defendant requests a total of $9, 3663.00 in attorney fees. [Doc. 79, p. 2].

         Plaintiff argues that the fees sought are excessive, and that “the supporting affidavit is insufficient to show the fees are reasonable.” [Doc. 82, p. 1]. Specifically, Plaintiff argues that the hourly rates sought - $450.00 per hour for attorney James Barnett and $240.00 per hour for attorney Elizabeth Rudolf - are excessive for this district. [Id., p. 2]. Additionally, Plaintiff argues that Defendant's requested hours - 30.1 for both attorneys - demonstrates duplicative billing practices. Plaintiff asks the Court to evaluate both the requested hours and hourly rates for reasonableness. [Id., p. 1]. Plaintiff also takes issue with certain specific hours requested by Defendant, such as the allegedly 7.9 hours spent coordinating regarding the motion to compel, 5.3 hours spent revising the reply brief (yet only 2 hours drafting it), and duplicative entries for drafting the initial Motion.

         In its Reply, Defendant argues that its attorneys' time was not duplicative, and supports its time entry for revising the reply brief by arguing that “there is no substantiated reason why fine-tuning and revisions of a brief cannot exceed the initial drafting.” [Doc. 84, p. 2]. As to the time spent coordinating, Defendant explains that this time was spent “coordinating regarding the meet and confer, reply brief, strategy for both the original motion and its reply, discovery issues, filing, supplemental production, and communications with the client team.” [Id.]. More to the point, Defendant argues that “[h]ad EDi complied with Atkins Energy's original requests and met its discovery obligations, a majority of this time would not have been spent.” [Id.]. Finally, Defendant argues in support of its proposed hourly rates. [Id., pp. 2-3].


         “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 of 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.” Jane L. 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 rate is within the district court's discretion…. [and] [h]ourly rates must reflect the prevailing market rates in the relevant community.” Jane L., 61 F.3d at 1510 (citation omitted).

         An applicant lawyer must keep “meticulous time records that reveal all hours for which compensation is requested and how those hours were allotted to specific tasks.” Id. (citation omitted); Case v. Unified School Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1252 (10th Cir. 1998) (“Counsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.”). This concept is particularly apt “where a party is seeking to have his opponent pay for his own lawyer's work.” Robinson v. City of Edmond, 160 F.3d 1275, 1284 (10th Cir. 1998). As such, a lawyer's billing statement should “include the specific amounts of time allocated to each individual task.” Id. “Where the documentation of hours is inadequate, the district court may reduce the award accordingly.” Jane L., 61 F.3d at 1510 (citation omitted); see Case, 157 F.3d at 1252 (declining to award fees where the party failed to establish that an attorney's work was reasonably necessary to their case and because her billing statements were “not clear.”).

         “A general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.” Mares, 801 F.2d at 1203 (citations omitted); Case, 157 F.3d at 1252. As examples, the Mares court pointed to cases in which the Supreme Court reduced hours to account for a lawyer's lack of experience, for a failure to keep ...

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