Opinion
CASE NO. 08-21600-CIV-UNGARO/SIMONTON.
November 21, 2008
ORDER GRANTING, IN PART, PLAINTIFF'S MOTION TO COMPEL
Presently pending before the Court is Plaintiff's Motion to Compel (DE # 24) and Defendant's Response (DE # 33). This motion is referred to the undersigned Magistrate Judge (DE # 26), who held a hearing on this motion on November 20, 2008. Based upon a thorough review of the record, including the arguments made by counsel at the hearing, Plaintiff's motion is GRANTED, IN PART.
This lawsuit was originally filed in Florida state court on May 15, 2008, and was removed based on this Court's federal question jurisdiction because it is an action for unpaid wages that arises under the Fair Labor Standards Act (DE # 1).
Contemporaneously with the filing of the Complaint, Plaintiff propounded his first request for production of documents on Defendant. On July 28, 2008, Defendant responded by asserting general objections and stated that if materials responsive to Requests No. 1-4, 7, 9, and 11-13 are in its possession that they "shall be provided forthwith" (DE # 24). On September 12, 2008, Defendant provided substantive responses to all the remaining requests, except for Requests No. 11 and 13, which Defendant repeated would be "provided forthwith." Id. Plaintiff finally filed the instant motion to compel on November 11, 2008 because Defendant failed to supplement its response to Requests No. 11 and 13. Id.
Defendant responded to the motion to compel and filed supplemental responses to the remaining requests for production. In response to Request No. 11, which sought "All written job descriptions related to the jobs Plaintiff performed for Defendant," Defendant responded, "None. No job description" (DE # 32, Ex. A at 4). in response to Request no. 13, which sought "All documents evidencing projects or job sites that Plaintiff worked on in the furtherance of Defendant's business," Defendant responded, "Only [o]n time [s]lips [p]reviously provided in first request for production." Id.
During the hearing, Plaintiff acknowledged that Defendant's supplemental responses were adequate, although he maintained that he is entitled to $500.00 in attorneys' fees (2 hours at an hourly rate of $250.00) pursuant to Federal Rule of Civil Procedure 37 because he was unnecessarily forced to go on a "wild goose chase" to extract these discovery responses, including sending emails to Defendant's counsel on July 28, August 7, October 31 and November 10, 2008; and preparing the instant motion to compel (DE # 24).
Defendant agrees that Plaintiff is entitled to an award of attorneys' fees pursuant to Federal Rule of Civil Procedure 37, but that it is only reasonable to charge one hour of attorney time at an hourly rate of $250.00. The parties agreed that Defendant should have 20 business days to pay the sanction.
The undersigned concludes that sanctions are warranted under Federal Rule of Civil Procedure 37(a)(5)(A); that Plaintiff attempted to resolve this matter in good faith prior to filing the motion; that Defendant's failure to timely respond to the request for production was unjustified; and that there are no circumstances that make an award of attorneys' fees unjust. The undersigned further agrees with the parties that an hourly rate of $250.00 is reasonable. The undersigned finds, however, that an award of attorneys' fees in the amount of $500.00 based on two hours of attorney time is excessive, and that Plaintiff is only entitled to recover $250.00 for one hour of attorney time in connection with the instant motion to compel. It is, accordingly,
ORDERED AND ADJUDGED that Plaintiff's Motion to Compel (DE # 24) is GRANTED, IN PART. On or before Monday, December 22, 2008. Defendant shall pay Plaintiff $250.00 in attorneys' fees as a sanction for failing to timely respond to Plaintiff's first request for production of documents.
DONE AND ORDERED in chambers in Miami, Florida.