United States District Court, D. New Mexico
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.
MEMORANDUM OPINION AND ORDER
H. RITTER, U.S. MAGISTRATE JUDGE
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.
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].
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].
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.
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].
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.
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).
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.”).
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 ...