United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR ATTORNEY'S FEES
H. RITTER, UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant's Motion
for Attorney Fees [Doc. 48] associated with filing its
first Motion to Compel and Memorandum Brief in Support
Thereof [Doc. 36], filed November 21, 2018. Plaintiff
did not file a Response and Defendant filed a Reply [Doc. 50]
and Notice of Completion of Briefing [Doc. 51] on April 2,
2019. Having considered the submissions and relevant
authority, the Court will grant Defendant's Motion.
FACTUAL AND PROCEDURAL BACKGROUND
January 25, 2018, Plaintiff Jamare Dirrick Baity filed a
Civil Complaint alleging that he was wrongfully terminated
from his position as Assistant Manager at one of
Defendant's Good2Go stores. [Doc. 1-1]. Defendant removed
the case on February 23, 2018. [Doc. 1]. The Court entered a
Scheduling Order on August 14, 2018, setting the termination
date for discovery as February 14, 2019. [Doc. 31].
September 18, 2018, Defendant sent its First Set of
Interrogatories and Requests for Production to Plaintiff.
[Doc. 33]. Pursuant to an agreed upon two-week extension,
Plaintiff submitted his objections, answers, and responses to
Defendant's first set of discovery requests on October
31, 2018. [Doc. 34]. On November 13, 2018, Defendant sent a
letter to Plaintiff requesting that Plaintiff supplement his
discovery responses citing what it deemed to be inappropriate
objections and deficient responses. [Doc. 36-2]. Plaintiff
did not respond to Defendant's letter and on November 21,
2018, Defendant filed its first Motion to Compel. [Doc. 36].
did not file or serve a Response to the Motion and on
December 20, 2018, the Court entered an Order granting the
Defendant's first Motion to Compel. [Doc. 37; Doc. 40].
The Court ordered Plaintiff to provide complete answers and
responses to Defendants First Set of Interrogatories and
Requests for Production by January 3, 2019. [Doc. 40, p. 2');">p. 2');">p. 2');">p. 2].
The Court also awarded Defendant reasonable expenses,
including attorney's fees in connection with bringing the
Motion. [Doc. 43, p. 2');">p. 2');">p. 2');">p. 2]. Plaintiff was given until December
26, 2018 to respond to the Court's award of
Defendant's reasonable expenses. [Id.].
Plaintiff made no response. [Doc. 43, p. 2');">p. 2');">p. 2');">p. 2].
to the Court's December 20, 2018 Order, Defendant filed
its Motion for Attorney's Fees on March 12, 2019. [Doc.
48]. Plaintiff did not file a Response in accordance with the
federal or local procedural rules. See Fed. R. Civ.
P. 5; D.N.M.LR-Civ.R. 7.4(a). Plaintiff did send a Response
to Defendant's counsel, which Defendant attached as an
exhibit to its Reply in support of the Motion for
Attorney's Fees [Doc. 50]. The Court will not consider
the Response in determining the reasonableness of
Defendant's fee award since it was not filed or served in
accordance with the federal and local rules and is not
properly before the Court. See Fed. R. Civ. P. 5;
the Court grants a motion to compel under Rule 37(a), it 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” unless: (1)
“the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
action”; (2) “the opposing party's
nondisclosure, response, or objection was substantially
justified”; or “other circumstances make an award
of expenses unjust.” Fed.R.Civ.P. 37(s)(5)(A).
attorneys' fees under Rule 37(a)(5) are typically
calculated using the lodestar methodology, which requires the
court to multiply the hours counsel for the party seeking
attorneys' fees reasonably spent on the discovery motion
by a reasonable hourly rate. See Robinson v. City of
Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998); Jane
L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir.1995). The
party requesting attorney fees bears the burden of proving
the two components used to calculate the fee award: (1) the
appropriate hourly rate and (2) the amount of hours spent on
the case. See 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.
determine what constitutes a reasonable rate, the district
court considers the prevailing market rate in the relevant
community.” Lippoldt v. Cole, 468 F.3d 1204,
1224-25 (10th Cir. 2006)). The party seeking fees must
provide the district court with sufficient information to
evaluate prevailing market rates. See Id. at 1225.
That 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, 43');">157 F.3d 1243, 1255-56 (10th
Cir. 1998); Ramos v. Lamm, 713 F.2d 546, 555 (10th
Cir. 1983) (“The hourly rate should be based on the
lawyers' skill and experience in civil rights or
analogous litigation.”), overruled in part on other
grounds, Pennsylvania v. Del. Valley Citizens' Council
for Clean Air, 483 U.S. 711');">483 U.S. 711, 725 (1987).
party seeking fees “should submit evidence supporting
the hours worked and rates claimed.” Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983). The court may
adjust the lodestar figure to reflect various factors,
including the degree of success obtained, the significance of
the legal issues involved, and the public interest advanced
by the litigation. See Farrar v. Hobby, 506 U.S.
103, 120-22 (1992). After the lodestar amount is calculated
the court or agency adjudicator may adjust that figure based
on consideration of other factors. See Blanchard v.
Bergeron, 489 U.S. 87');">489 U.S. 87, 94 (1989).
case, Defendant seeks $6, 763.77 in attorneys' fees
incurred in connection with bringing its first Motion to
Compel. [Doc. 48, p. 2');">p. 2');">p. 2');">p. 2]. This represents 20.9 hours of time
for Defendant's attorney, Anna Indahl, ...