Opinion
Case No. 3-:05-CV-346.
July 31, 2006
ENTRY AND ORDER AWARDING ATTORNEY'S FEES TO EVENFLO IN THE AMOUNT OF $5,936.88
In a prior Entry and Order, this Court found that Hantec's responses to Interrogatory No. 25, Request for Production No. 13 and Request for Production No. 14 were incomplete and/or evasive and thus not in compliance with the rules of discovery. (Doc. #23.) As a result, Evenflo was found to be entitled to sanctions pursuant to Fed.R.Civ.P. 37 and Evenflo was given fifteen days to submit a Bill of Costs incurred in bringing and replying to its Motion To Compel. (Id.)
Evenflo has now filed its Bill of Costs (doc. #29), Hantec has responded (doc. #33) and Evenflo has replied (doc. #35.) The amount of the sanction for failure to comply with the rules of discovery is now ripe for decision.
Evenflo has presented evidence of a total of $8,344.00 in attorney's fees for sanctions for Hantec's non-compliance with the rules of discovery. This amount includes:
12.75 hours for Mr. Bricker at an hourly rate of $180.00
7.5 hours for Mr. Lipps at an hourly rate of $256.50
24.25 hours for Mr. Bruemmer at an hourly rate of $133.00
3.1 hours for Mr. Greer at an hourly rate of $300.00
The body of Mr. Bricker's Affidavit indicates that Mr. Lipps bills at the rate of $256.80 but the entries reflect that he bills at the rate of $256.50.
Hantec responds that the claimed amount is "well above the reasonable cost to make a motion of this nature," and that Evenflo is seeking reimbursement for work that was performed for unrelated matters.
Attorney's fees awarded to a party must be reasonable. Paschal v. Flagstar Bank, FSB, 297 F.3d 431, 434 (6th Cir. 2002), cert. denied, 537 U.S. 1227 (2003). "A reasonable fee is one that is adequate to attract competent counsel, but . . . [does] not produce windfalls to attorneys." Id. (quoting Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999).
The starting point for calculating a reasonable fee is the Lodestar amount. Adcock-Ladd v. Secretary of Treasury, 227 F.3d 343, 349 (6th Cir. 2000). The Lodestar amount is the proven number of hours reasonably expended by an attorney multiplied by the attorney's court-ascertained reasonable hourly rate. Id. (citing Hensley v. Eckerhart, 461 U.S. 424,433 (1983)). The Lodestar amount may then, within limits, be adjusted "to reflect relevant considerations peculiar to the subject litigation." Id. (citing Reed, 179 F.3d at 471-72.).
The party seeking attorney's fees has the burden of documenting his or her entitlement to the fees. Reed, 179 F.3d at 472. The applicant should submit evidence of the hours worked and the rates claimed. Id. If the documentation is inadequate, the court may reduce the award accordingly. Id. The analysis next turns to a determination of the Lodestar amount beginning with the hourly rates.
Hourly Rates
The normal practice in determining reasonable hourly rates is to begin by referring to an affidavit presented by an attorney in the community wherein the litigation takes place who does not represent one of the parties in the case. See, e.g., Paschal, 297 F.3d at 434; Satterwhite v. Faurecia Exhaust Systems, Inc., Case No. 3:02-CV-574, 2005 WL 1279253 at * 2 (S.D.Ohio May 31, 2005). In this case, however, instead of presenting an affidavit from an attorney who does not represent a party, Evenflo presents three affidavits from attorneys that represent Evenflo. These three affidavits are by attorneys for whom Evenflo seeks reimbursement and attest that the rates they seek are "consistent with those charged by attorneys working on cases of this complexity and magnitude in bringing a Motion To Compel and related Reply." All three of these attorneys practice in the venue in which this case is being litigated.
As Evenflo must be aware, the Motion for an Award of Attorneys Fees in Satterwhite included an affidavit from a local attorney who did not represent one of the parties. (Reply In Support of Plaintiff/Counterclaim Defendant Evenflo (doc. #35), Ex. B.)
The Court prefers to have at least one affidavit regarding rates from an attorney who does not represent one of the parties and will continue to have this expectation for future requests for attorney's fees. However, in this case, Hantec does not object to the hourly rates proposed by Evenflo. Therefore the Court finds that the hourly rates sought by Evenflo's attorneys are fair and reasonable in this case. The analysis then turns to the hours worked.
Hours Worked
Via Mr. Bricker's Affidavit, Evenflo presents evidence of a total of 47.6 hours worked. Hantec expresses several concerns regarding the hours worked, each of which will be addressed seriatim.
Hantec first argues that only the attorneys that allegedly performed the services may attest to the work that they performed. However, they cite no law in support of this argument nor is the Court aware of any.
Further, Mr. Bricker, who presented the hours worked, attests that he is the billing attorney and has reviewed the bills which include the hours worked. Also, Evenflo attached Affidavits to its Reply from its other attorneys who testify that the time entries are accurate and that the services for which the hours are charged were actually and necessarily performed.
Therefore, Hantec's first argument is not well-founded. Hantec has not shown that only the attorneys that allegedly performed the work may attest to the hours. If this was, however, a requirement, it has been satisfied by Evenflo.
Hantec's second argument is that all of Mr. Bricker's time entries from March 24, 2006, through April 11, 2006, should be excluded because these services relate to letters and discussions involving various issues between the parties, only a portion of which related to Hantec's discovery responses. Evenflo responds that Mr. Bricker's time entries from March 24, 2006, through April 11, 2006, are related to extrajudicial attempts to resolve the discovery dispute. (Reply n1.)
While extrajudicial attempts to resolve discovery disputes are contemplated, if not required, by the Federal Rules of Civil Procedure, they are not includable in the reasonable attorney's fees necessary to prepare the Motion To Compel and associated documents. Satterwhite, 2005 WL 1279253 at *3. Therefore, the 7.5 hours expended by Mr. Bricker on extrajudicial attempts to resolve the discovery dispute are not reimbursable here.
Hantec's third argument is that the $745.00 that Mr. Bricker charged for the five and one quarter hours Mr. Bricker claims to have spent working on the Motion "seems to be excessive" considering the simplicity of the motion. First, Mr. Bricker actually charged $945.00 for the five and one quarter hours. Second, Hantec does not substantiate its "excessive" argument. Therefore, Hantec's argument regarding excessive hours by Mr. Bricker it is not well-founded. The court will address the total hours expended by all attorneys later in this document.
Hantec's fourth argument is that the entries for Mr. Lipps from March 24, 2006, through March 31, 2006, are not related to the Motion To Compel and should not be reimbursed. Further, activities extraneous to the Motion are included in the Bill of Costs for Mr. Lipps. Also, Hantec argues that much of the work performed by Mr. Lipps is duplicative of work performed by Mr. Bricker. Finally, Hantec argues that it is unnecessary for two partners at a firm to review an associate's work in addition to another attorney, Mr. Greer.
First, Evenflo responds that Mr. Lipps's time entries from March 24, 2006, through March 31, 2006, are related to extrajudicial attempts to resolve the discovery dispute. (Reply n1.) They will, therefore, be excluded.
The evidence of the remaining 5.25 hours charged by Mr. Lipps indicates that this time was spent in various activities associated with the Motion To Compel and Mr. Lipps's Affidavit confirms this conclusion. Therefore, these are not "extraneous" activities.
Mr. Lipps indicates that he was reviewing and revising work done by Mr. Bricker. Since Mr. Bricker is an associate and Mr. Lipps a partner, this review and revision is to be expected and is not unreasonable.
Finally, Evenflo responds that Mr. Greer's time entries from March 29, 2006, through April 11, 2006, are related to extrajudicial attempts to resolve the discovery dispute. (Reply n1.) They will, therefore, be excluded. The remaining 1.4 hours charged by Mr. Greer are not unreasonable for an attorney to review the work of another firm on a Motion To Compel.
Hantec's fifth argument is that, although "it does not necessarily object to the work that was performed by Mr. Bruemmer," the 24.25 hours spent was excessive. Hantec also argues that the seven hours spent by Mr. Bruemmer on legal research is excessive when only one case was cited. However, a total of 24.25 hours on research and preparation of a Motion To Compel and research and preparation of a Reply to the Motion is not excessive nor has Hantec provided any substantiated reasoning to the contrary. Regarding the seven hours doing research, it is well understood that legal research is absolutely necessary and does not always result in cases being cited.
In sum, with the exception of the time spent related to extrajudicial attempts to resolve the discovery dispute, the hours submitted by Evenflo for research and preparation of a Motion To Compel and for research and preparation of a Reply in this matter are reasonable. Specifically, the following hours are reasonable:
5.25 hours for Mr. Bricker
5.25 hours for Mr. Lipps
24.25 hours for Mr. Bruemmer
1.4 hours for Mr. Greer
The Lodestar Amount
Because the hours expended are reasonable and the hourly rate is reasonable, the Lodestar amount calculated therefrom is reasonable. Following is a summary of the Lodestar amount:5.25 hours for Mr. Bricker at an hourly rate of $180.00 = $945.00
5.25 hours for Mr. Lipps at an hourly rate of $256.50 = $1,346.63
24.25 hours for Mr. Bruemmer at an hourly rate of $133.00 = $3,225.25
1.4 hours for Mr. Greer at an hourly rate of $300.00 = $420.00
Conclusion
The total Lodestar amount is $5,936.88. Further, no adjustments to the Lodestar amount are requested here and none are warranted. Therefore, Hantec is ordered to pay Evenflo $5,936.88 for attorneys fees regarding Evenflo's Motion To Compel.
DONE and ORDERED.