United States District Court, D. New Mexico
MICHAEL GRIEGO, Personal Representative of the Wrongful Death Estate of ALEC J. JARAMILLO, Deceased, ANDREW JARAMILLO and TERESA ROMO, Plaintiffs,
LABERTA M. DOUGLAS, Personal Representative of the Estate of RUSSELL E. DOUGLAS, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
H. RITTER U.S. MAGISTRATE JUDGE.
matter comes before the Court on Plaintiffs' Motion for
Attorney Fees [Doc. 182], filed April 19, 2019. Defendants
filed a Response [Doc. 192] on May 3, 2019. Plaintiffs did
not file a Reply; therefore, briefing is complete.
See D.N.M.LR-Civ. 7.1(b). Having considered the
positions of the parties and the evidence before the Court,
Plaintiffs' Motion for Fees will be granted in
Court granted Plaintiff Michael Griego's Motion to Compel
Discovery Responses and Request for Sanctions [Doc. 159] and
denied Laberta M. Douglas' Motion for Protective Order
[Doc. 162] on April 5, 2019. [See Doc. 171 (Order
Granting Motion to Compel and Denying Motion for Protective
Order and Awarding Plaintiff Griego Reasonable Expenses)].
The Court concluded that Griego's Motion to Compel
answers to his requests for admissions and corresponding
interrogatories was well-taken and that Laberta's Motion,
which took the opposite view of the issues, was not
substantially justified. [Id., p. 13]. Accordingly,
the Court authorized Griego to file a motion seeking his
costs and fees associated with litigating the Motion to
Compel and Motion for Protective Order. [Id.].
filed the instant Motion pursuant to this Court's April
5, 2019, Order. [See Doc. 182, p. 1]. In it, they
recite the amounts of time spent by attorneys Brent Ferrel
and Richard Sutten to draft and edit Plaintiff's Motion
to Compel and their Response to Defendant's Motion for a
Brent Ferrel 2.2 hours
Richard Sutten 1.5 hours
[Id.]. They request attorneys' fees in the
amount of $1, 340.10, with Mr. Ferrel charging a rate of
$300.00/hour and Mr. Sutten charging a rate of $395.00/hour.
[Id.; Doc. 182-1, pp. 1-3]. Besides the
attorneys' own affidavits (Mr. Ferrel has been practicing
for almost 10 years and Mr. Sutten has been practicing law
for 22 years), Plaintiffs provide no evidence supporting
these hourly rates. [Id.].
seize upon this fact in their response, arguing that
Plaintiffs failed to justify the hourly rates they request,
which are on the high-side for New Mexico personal injury
attorneys. [See Doc. 192, p. 2]. As such,
“Defendants request that the Court reduce the amount of
fees Plaintiffs seek to a justifiably reasonable
amount.” [Id.]. However, “Defendants do
not dispute the reasonableness of the time Plaintiffs'
counsel expended on the pleadings.” [Id.].
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. “The Supreme
Court has described the test of ‘substantially
justified' under Rule 37 as ‘a genuine dispute or
if reasonable people could differ as to the appropriateness
of the contested action.'” Lester v. City of
Lafayette, Colo., 639 Fed.Appx. 538, 542 (10th Cir.
2016) (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)). “To avoid an attorney-fee award, the
moving party must show that its motion had a
‘reasonable basis both in law and fact.'”
Id. at 541.
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 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). The party seeking fees must provide
the district court with sufficient information to evaluate
prevailing market rates. See Lippoldt v. Cole, 468
F.3d 1204, 1225 (10th Cir. 2006). That party must also
demonstrate that ...