United States District Court, D. New Mexico
LISA M. REHBURG, Plaintiff,
BOB HUBBARD HORSE TRANSPORTATION, INC., Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR
H. RITTER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion for
Expenses Pursuant to the Court's Memorandum Opinion and
Order Granting Defendant's Motion to Compel
Plaintiff's Expert Witness Disclosure [Doc. 69],
[Doc. 70], filed July 9, 2019. On August 30, 2019, District
Judge Martha Vasquez designated Magistrate Judge Jerry H.
Ritter to hear and determine the Motion, pursuant to 28
U.S.C. Sections 636(b)(1)(A) and Rule 72(a) of the Federal
Rules of Civil Procedure. [Doc. 80]. Having reviewed the
Motion and the relevant law, and noting that the Motion is
unopposed, the Court finds that the Motion is well taken and
should be granted.
FACTUAL AND PROCEDURAL BACKGROUND
case arises from injuries sustained by Plaintiff's
thoroughbred horse which occurred while the horse was being
unloaded after transport by Defendant. [Doc. 1, p. 17; Doc.
18');">18, p. 2');">p. 2]. According to Plaintiff, the horse was severely
injured, requiring major surgery and months of
rehabilitation. [Doc. 1, p. 18');">18]. Plaintiff seeks damages for
the horse's pain and suffering and medical expenses, as
well as lost earnings, lost earning capacity, and loss of
economic value of the horse as a racehorse and a stud.
[Id., pp. 18');">18-19].
Court entered a Scheduling Order on August 27, 2018');">18, setting
Plaintiff's expert witness disclosure deadline for
December 1, 2018');">18. [Doc. 15, p. 2');">p. 2]. On December 19, 2018');">18,
Defendant filed its Motion to Compel Plaintiff's
Expert Witness Disclosures. [Doc. 27]. The case was
subsequently stayed pending decisions on Plaintiff's
Motion for Withdrawal of Counsel. [Doc. 29] and
Motion to Remand [Doc. 31]. [Doc. 37; Doc. 41]. The
stay was lifted on May 6, 2019. [Doc. 43; Doc. 44]. On May
16, 2019, Plaintiff submitted her expert witness disclosures
to Defendant and filed her Response to Defendant's
Motion to Compel Plaintiff's Expert Witness
Disclosures. [Doc. 54]. Defendant's Reply to
Defendant's Motion to Compel Plaintiff's Expert
Witness Disclosures was filed May 21, 2019. [Doc. 56].
Court granted the motion to compel on June 26, 2019, finding
that Plaintiff's expert witness disclosures were untimely
and ordered Defendant to file its motion for reasonable
expenses associated with litigating the motion to compel.
[Doc. 69, p. 5]. Defendant timely filed the instant Motion on
July 9, 2019. [Doc. 70]. Plaintiff did not file a response.
The Law Regarding Attorneys' Fees
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.
Rule 37(a)(5)(A) provides:
“[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.”
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.
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, 1 F.3d 1505');">61 F.3d 1505, 1510 (10th Cir.
1995) (internal quotation marks and citation omitted);
see Mares v. Credit Bureau of Raton, 1 F.2d 1197');">801 F.2d 1197,
1201 (10th Cir. 1986) (“The fee applicant bears the
burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly
rates.”). The Court will then reach a “lodestar
figure, ” which is the product of reasonable hours
expended times a reasonable hourly rate. See Id. at
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 (internal quotation marks
and 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. (internal
quotation marks and citation omitted). 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');">160 F.3d 1275, 1284
(10th Cir. 1998).