Opinion
Civil Action No. 3:00-CV-2297-L.
April 3, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order of Reference, filed February 7, 2003, Plaintiff's Motion to Compel Post-Judgment Discovery and for Reasonable Expenses, filed February 5, 2003, was referred to this Court for hearing, if necessary, and for findings and recommendation. The Court recommends that the motion be GRANTED.
I. Facts
Final Judgment was entered for National Satellite Sports, Inc. ("Plaintiff") against Mary Adelaide Elizondo, individually and d/b/a the Magic Carpet Club ("Defendant"), on May 31, 2001 by default. On October 17, 2002, Plaintiff served Defendant with Post-Judgment Requests for Production, Post-Judgment Requests for Admissions, and Post-Judgment Interrogatories. (Pl.'s M. to Compel, Exhibit C at 1-2.) These documents were personally delivered to Defendant at her home. Id. Defendant has not responded to the discovery requests. (Pl.'s M. to Compel, Exhibit B at 2.) As a result, Plaintiff filed the instant motion. This Court, in its Order of February 10, 2003, directed Defendant to respond no later than March 3, 2003, but Defendant did not.
II. Analysis
A. Motion to Compel
On October 17, 2002, Plaintiff served post-judgment discovery requests on Defendant that requested information dealing with the assets, income, financial status, and financial liabilities of Defendant and her immediate family members. As of this date, answers to those discovery requests have not been provided, nor were any objections thereto asserted. Plaintiff now seeks an order compelling Defendant to answer pursuant to Federal Rule of Civil Procedure 37.
Plaintiff has a right to discover information pertaining to Defendant's ability to satisfy the judgment against her. See F.D.I.C. v. LeGrand, 43 F.3d 163, 172 (5th Cir. 1995) ("The scope of post-judgment discovery is very broad to permit a judgment creditor to discover assets upon which execution may be made.") Federal Rule of Civil Procedure 69(a) allows the normal procedure of compelling answers to discovery to apply to post-judgment discovery requests. FED. R. CIV. P. 69(a); see also McElveen v. Carib Inn Intern., Inc., 71 F.R.D. 193, 194 (S.D.Tex. 1976). Therefore, as in pre-trial discovery, if the party against whom discovery is sought fails to answer, Rule 37(a)(2)(B) allows the discovering party to compel. Furthermore, objections to post-judgment discovery requests are waived if not timely raised, unless the failure to object is excusable for good cause shown. FED. R. CIV. P. 33(b)(4); In Re United States, 864 F.2d 1153, 1156 (5th Cir. 1989).
The Court finds that Defendant has been given due notice of Plaintiff's post-judgment discovery requests and has failed to respond or to object. Plaintiff's motion to compel should, therefore, be GRANTED and Defendant should be ordered to respond within twenty days of the District Court's Order adopting this recommendation.
B. Costs and Attorney's Fees
Plaintiff requests reasonable expenses, including attorney's fees, in the amount of $750.00 incurred in filing the instant motion pursuant to Rule 37(a)(4)(A). An award of reasonable expenses, including attorney's fees, is mandatory under Rule 37(a)(4) unless circumstances make such an award unjust. Giardina v. Lockheed Martin Corp., 2003 WL 1338826, at *2 (E.D. La. Mar. 14, 2003). In requesting such an award, the movant must provide adequate documentation of reasonable expenses and attorney's fees in accordance with the criteria set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Day v. Allstate Ins. Co., 788 F.2d 1110, 1113 (5th Cir. 1986) (finding documentation of the hours and materials expended "sufficient to permit the district court to assess attorney's fees in accordance with the criteria set forth in Johnson"). If an award is made, the court must articulate its reasons for making such an award. See Black Association of New Orleans Fire Fighters v. City of New Orleans, 911 F.2d 1063, 1066 (5th Cir. 1990) ("While the determination of reasonable attorney's fees is left to the sound discretion of the lower court, the court must articulate reasons for its award so we may have a basis to review such award.")
In general, a court employs the "lodestar" method to calculate the amount of fees to be awarded. Tollett v. City of Kemah, 285 F.3d 357, 367 (5th Cir. 2002) (using the "lodestar" method to award attorney's fees under Rule 37(a)(4)). The "lodestar" method requires the court to multiply the "number of hours reasonably expended by an appropriate hourly rate in the community for such work." Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). The party seeking an award of attorney's fees has the burden of proving the reasonableness of the hours expended and the rate charged. Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996); Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990). If the party's proof of these factors is inadequate, the court may reduce the award accordingly. Id.
Plaintiff has failed to meet its burden to provide adequate documentation in support of its request for attorney's fees. The motion and attached affidavit provide no evidence of the number of hours expended in preparing the motion, of counsel's usual fee rate, or that the hours and rates are reasonable. The affidavit contains counsel's unsupported statement that $750.00 in attorney's fees is reasonable for the preparation and presentation of the motion to compel. (Pl.'s M. to Compel, Exhibit B at 3.) Notably absent are billing records or any other indicia of the amount of time spent on the motion. Attached to the motion is a printout of the attorney's website (Exhibit B-2), a list of the largest metroplex law firms (Exhibit B-3 at 1), 31 pages of a 1997 State Bar of Texas survey showing the hourly rates charged by attorneys throughout Texas (Exhibit B-3 at 2-32), and a copy of a pamphlet published by Martindale-Hubble which explains that company's rating system for attorneys (Exhibit B-3 at 33-34). The Court is unable to determine from these documents the number of hours expended or counsel's hourly rate.
"A district court may eliminate hours when the supporting documentation is too vague to permit meaningful review." Rappaport v. State Farm Lloyds, 2000 WL 769224, *4 (N.D. Tex., June 13, 2000) (Lindsay, J.) (citing Leroy v. City of Houston, 906 F.2d 1068, 1080 (5th Cir. 1990)). In this case, there is no supporting documentation for any hours. Accordingly, the Court cannot award fees on the basis of the application as submitted. If Plaintiff wishes to pursue its request for costs, including attorney's fees, a properly supported fee application may be filed within ten days of the date of the District Court's Order. See Rappaport, 2000 WL 769224 at *4 (denying fee award after applicants failed to resubmit fee application in accordance with the court's instructions).
III. Recommendation
For the foregoing reasons, the Court RECOMMENDS that Plaintiff's Motion to Compel Post-Judgment Discovery and for Reasonable Expenses be GRANTED, and that Mary Adelaide Elizondo, individually and d/b/a the Magic Carpet Club, should be ORDERED to answer Plaintiff's Post-Judgment Requests for Production, Post-Judgment Requests for Admissions, and Post-Judgment Interrogatories within twenty days of the entry of the District Court's Order. If Plaintiff wishes to pursue its request for costs, including attorney's fees, a properly supported application may be filed within ten days of the date of the District Court's Order.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).