Opinion
Case No. 1:12-mc-76
02-27-2014
E³ BIOFUELS, LLC, Plaintiff, v. BIOTHANE CORPORATION and PERENNIAL ENERGY, INC., Defendants.
Spiegel, J.
Litkovitz, M.J.
ORDER
On November 12, 2013, the Court granted non-party Katzen International, Inc. (Katzen)'s motion for sanctions and ordered Katzen to submit evidence of the fees and costs it incurred in pursuing the motion to quash and for sanctions. (Doc. 54). This matter is before the Court on Katzen's Notice of Filing of Affidavit of R. Guy Taft (Doc. 50), Perennial Energy, Inc. (PEI)'s memorandum in response (Doc. 56), and Katzen's reply memorandum and supplemental affidavit (Docs. 57, 58).
The full background of this miscellaneous case is set forth in the Court's Order of November 12, 2013, and is incorporated herein by reference. (Doc. 54). For purposes of the award of attorney fees and expenses to Katzen, the Court reiterates the following:
On September 30, 2013, the Nebraska District Court issued an Order quashing the subpoenas for depositions of all the "non-retained" experts in the Nebraska litigation, including the one served on Phillip Madson, Katzen's president, which was scheduled for October 11, 2013. Katzen then asked PEI to withdraw its subpoena for Mr. Madson's deposition. After PEI refused, Katzen filed motions to quash, for sanctions, and for contempt on October 3, 2013. (Doc. 50). On October 9, 2013, PEI advised Katzen that it did not intend to go forward with Mr. Madson's deposition, pending the Nebraska Court's decision on PEI's recently filed motion to reconsider its quashing of the subpoenas. (Doc. 51, Ex. 2). On October 22, 2013, the Nebraska Court denied PEI's motion to reconsider and ordered PEI to first seek permission from the Nebraska Court before noticing any additional depositions. (Doc. 51, Ex. 3).
In light of the Nebraska Court's October 22, 2013 Order, the undersigned denied as moot Katzen's motions to quash and for contempt. (Doc. 54). Nevertheless, the Court granted Katzen's motion for sanctions finding that PEI's refusal to withdraw the deposition subpoena to Mr. Madson violated its obligation to "take reasonable steps to avoid imposing undue burden or expense" on Mr. Madson and that Katzen was fully justified in filing its motion to quash to protect the interests of Mr. Madson in this case. Therefore, the Court found that Katzen should be awarded its reasonable fees and expenses in making the motion and ordered Katzen to submit evidence of its fees and costs.
Katzen has now submitted evidence in support of its request for attorney fees and expenses in the amount of $10,318.25 for the filing of the motions to quash, for sanctions, and for contempt and related memoranda. (Doc. 55). Katzen also seeks supplemental fees of $3,662.50 based on the additional fees incurred in preparing its reply memoranda to PEI's response to Katzen's original submission in support of its fee request. (Doc. 57).
In response to Katzen's requests, PEI seeks reconsideration of the Court's award of sanctions and/or a reduction of the amount of the award to reflect PEI's "effective 'withdrawal' of the subpoena" to Mr. Madson. (Doc. 56 at 2). PEI also requests that the Court reduce the award of fees to Katzen arguing that Katzen's request is unreasonable. PEI requests that the Court: (1) not compensate Katzen's counsel for fees incurred after October 9, 2013, the date of the "effective 'withdrawal' of the subpoena"; (2) remove fees that reflect duplicated work - specifically 8 hours of work charged by Attorney R. Guy Taft, which duplicate the work performed by Mr. Schilling in drafting Katzen's original motion; (3) reduce all fees charged by Attorney R. Guy Taft to an hourly billing rate of $205, "as this is the rate Attorney Steve Schilling (an adequately, but not over qualified, attorney) charged to draft the motion to quash"; and (4) reduce the fees to account for time Katzen spent drafting briefs concerning its request that PEI and its counsel be held in contempt. (Doc. 56 at 4).
I. PEI's request for reconsideration is denied.
PEI asks the Court to reconsider its award of sanctions to reflect what PEI calls its "effective 'withdrawal' of the subpoena" to Mr. Madson. As a general rule, motions for reconsideration are not favored unless the movant demonstrates: "(1) a manifest error of law; (2) newly discovered evidence which was not available previously to the parties; or (3) intervening authority." Meekison v. Ohio Dept. of Rehabilitation and Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998) (citing Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)).
The Court has carefully reviewed PEI's request for reconsideration. On the one hand, PEI argues it "effectively did withdraw the subpoena" by advising Katzen in the October 9, 2013 email that it did not intend to proceed with the deposition as noticed. (Doc. 56 at 2). Yet, PEI then admits "[t]he subpoena was not 'withdrawn' because time constraints and deadlines pending in the underlying action could have prevented PEI from reissuing the subpoena" and PEI "intended to preserve the subpoena's original notice date by reserving the right to amend the subpoena. . . ." (Id.). PEI did not effectively withdraw the deposition subpoena. PEI essentially reargues the issues upon which it was not previously successful. PEI presents no intervening change of controlling law, nor has it submitted any new evidence not previously available to it in response to Katzen's motion to quash. The Court is not aware of any need to correct a clear error of law or to prevent manifest injustice. PEI has not alleged any facts or cited any legal authority which suggests that reconsideration of the Court's Order is warranted. Therefore, PEI's motion for reconsideration is denied.
II. The Court awards Katzen $12,130.90 in attorney fees and expenses.
Under Rule 45, attorney's fees may be awarded where a party serving a subpoena fails to comply with its obligation to "take reasonable steps to avoid imposing an undue burden or expense on a party subject to the subpoena." Fed. R. Civ. P. 45(c)(1). The rule "is intended to protect nonparties to litigation from, in effect, suffering inconvenience or expense from having to participate in someone else's quarrel." Hackmann v. Auto Owners Ins. Co., No. 2:05-cv-876, 2009 WL 330314, at *1 (S.D. Ohio Feb. 6, 2009).
The starting point for the Court's determination of a reasonable fee award to Katzen, a non-party to the Nebraska litigation, is the "lodestar" amount. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar approach is calculated by multiplying the number of hours counsel reasonably expended on the case by the attorney's "court-ascertained reasonable hourly rate." Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing Hensley, 461 U.S. at 433). To determine the reasonable hourly rate, "courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record." Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (citing Adcock-Ladd, 227 F.3d at 350). The Court in its discretion may consider factors such as awards in analogous cases, the party's submissions, and the Court's own experience in handling similar requests for attorney fees. Hunter v. Hamilton Cty. Bd. of Elections, No. 1:10-cv-820, 2013 WL 5467751, at *16 (S.D. Ohio Sept. 30, 2013) (Dlott, C.J.). "Where the party seeking the attorney fees has established that the number of hours and the rate claimed are reasonable, the lodestar is presumed to be the reasonable fee to which counsel is entitled." Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 552 (6th Cir. 2008) (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564 (1986)). On the other hand, where the documentation of hours is inadequate, or where counsel for the prevailing party seeks fees for hours that were not "reasonably expended," the district court may reduce the award accordingly. Hensley, 461 U.S. 433-34.
In this case, Katzen seeks $10,318.25 in fees relating to the motions to quash, for sanctions, and for contempt and $3,662.50 in fees incurred in responding to PEI's motion for reconsideration of the Court's award of sanctions and PEI's arguments seeking to limit Katzen's fee award. Katzen requests a rate of $425.00 for work performed by Attorney R. Guy Taft; $205.00 per hour for work performed by Attorney Stephen E. Schilling; and $175.00 for work performed by Paralegal Robyn L. Shapiro.
PEI seeks a disallowance of fees for work performed by Katzen's attorneys after October 9, 2013, the date PEI says it "effectively" withdrew its deposition subpoena for Mr. Madson. The Court denies this request for the same reasons discussed above in connection with PEI's motion for reconsideration of the award of sanctions.
The Court denies Katzen's request for fees related to time spent drafting its brief on its motion to hold PEI and its counsel in contempt. This Court is without the power to hold a party in contempt of another court's order. See In re Debs, 158 U.S. 564, 595 (1895), abrogated on other grounds by Bloom v. Illinois, 391 U.S. 194 (1968); Ex parte Bradley, 74 U.S. 364, 371-72 (1869). "To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency. . . . [T]he sole adjudication of contempts, and the punishments thereof [belong] exclusively . . . to each respective court." In re Debs, 158 U.S. at 595. "It is elementary that the court against which a contempt is committed has exclusive jurisdiction to punish for such contempt." United States v. Barnett, 330 F.2d 369, 385 (5th Cir. 1963). See Red Nation Partnership v. Kiga, 51 F. App'x 630, 632 (9th Cir. 2002) ("It almost goes without saying that the court against which contempt is alleged to have been committed has exclusive jurisdiction to punish for such contempt.") (citing Ex parte Bradley, 74 U.S. at 371-72); Wilson v. United States, 26 F.2d 215, 218 (8th Cir. 1928) ("[I]t is the general rule that only the court which has been offended can exercise the power [of contempt]."); Gray v. Petoseed Co., Inc., 985 F. Supp. 625, 628 (D.S.C. 1996) ("A contrary ruling would lead to the 'anomalous proceeding of one court taking cognizance of an alleged contempt committed before and against another court, which possesse[s] ample powers, itself to take care of its own dignity and punish the offender.'") (quoting Ex parte Bradley, 74 U.S. at 372) (and numerous cases cited therein). See also C.J.S. Contempt § 78 (2013) ("It is a well established rule that the power to judge a contempt rests with the court contemned, and that no court is authorized to punish a contempt against another court."). Although this Court has the power to issue a contempt finding based on violations of its own orders, it cannot issue contempt sanctions based on the orders of another district court. Therefore, the Court shall not award fees for the time spent by Katzen on the contempt issues. The Court will deduct one-third of the hours expended by Mr. Taft and Mr. Schilling on the original motion for contempt to account for the time the Court estimates counsel expended prior to October 3, 2013, the date the motion was filed.
As there is no mention of the contempt issues in Katzen's reply memorandum, the Court makes no deduction of time for work on the reply memorandum.
PEI also seeks to deduct from the award 8 hours charged by Attorney R. Guy Taft in drafting Katzen's original motion to quash on the ground the 8 hours is duplicative of work performed by Mr. Schilling. The Court declines to reduce Katzen's fees on this basis. The billing itemization submitted by Katzen reflects that associate and paralegal time were appropriately utilized as the foundational work for the final drafting and editing by the partner in charge of this matter. Nevertheless, the Court will deduct 0.5 hours for the work performed on October 4, 2013, for the "[f]inal check of documents for filing and follow up on filings," as the Court is unable to discern any basis for these charges given that the motion to quash had already been filed on October 3, 2013.
In addition, the Court declines PEI's request to reduce Mr. Taft's hourly rate in this case. The rate of $425.00 per hour charged by Mr. Taft is his customary billing rate (Doc. 55, Taft Aff. ¶ 3) and is one reliable indicia of Mr. Taft's prevailing market rate. See West v. AK Steel Corp. Ret. Acc. Pension Plan, 657 F. Supp.2d 914, 932 (S.D. Ohio 2009) (Beckwith, J.) (citing Radix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995)). The hourly rate requested by counsel is also in keeping with awards made by this Court to other lawyers of similar experience, skill, and reputation, see Hunter, 2013 WL 5467751, at *16-17 (and attorney references therein), and PEI has presented no evidence establishing that the rate sought is unreasonable.
Finally, Katzen seeks fees for the work performed on its reply memorandum filed in response to PEI's memorandum in opposition to Katzen's fee request. Katzen represents that its reply memorandum was prepared by the partner in charge to efficiently and concisely address the arguments raised by PEI. Katzen has submitted the supplemental affidavit of Attorney Taft itemizing the additional charges related to the preparation of the reply memorandum. Katzen seeks fees for 8 hours of attorney time and 1.5 hours of paralegal time. The Court finds the time expended on Katzen's reply brief was reasonable and necessary to address the issues raised by PEI in its responsive memorandum. The Court therefore grants Katzen's request for fees in this regard.
In conclusion, the Court will subtract $1,635.25 for work performed in connection with Katzen's request that PEI and its counsel be held in contempt of court and $212.50 for time expended October 4, 2013. Thus, the lodestar amount based on counsels' reasonable hourly rates multiplied by the reasonable hours expended on the motions to quash and for sanctions is reduced from $13,980.75 originally sought by Katzen to $12,133.00. The Court AWARDS Katzen $12,133.00 in fees and expenses. PEI is ORDERED to pay Katzen $12,133.00 within thirty (30) days of the date of this Order.
The fees related to the contempt claim are calculated as follows: a deduction of one-third of Attorney Taft's 7.25 total hours in preparing the October 3, 2013 motions at the rate of $425.00 per hour, and a deduction of one-third of Attorney Schilling's 8.90 total hours in preparing the October 3, 2013 motions at a rate of $205.00 per hour.
--------
IT IS SO ORDERED.
__________
Karen L. Litkovitz
United States Magistrate Judge