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Rehburg v. Bob Hubbard Horse Transportation, Inc.

United States District Court, D. New Mexico

October 31, 2019

LISA M. REHBURG, Plaintiff,



         This 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.


         This 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].

         The 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].

         The 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.


         A. The Law Regarding Attorneys' Fees

         “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. 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.”

         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.

         If 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, 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 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 (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).

         B. ...

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