United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge
District Court granted the defendants' motion for summary
judgment, this case has been closed, and Mr. Smith has filed
a notice of appeal. Nevertheless, the matter is before the
Court on the defendants' request that Mr. Smith be
required to pay the reasonable expenses they incurred in
responding to his motion to compel discovery. [Defs.'
Letter, ECF No. 230.] For the reasons that follow, the
Defendants' request is granted in part.
November 13th Order
November 13, 2018 the Court denied Mr. Smith's motion to
compel discovery, which asserted that Ms. Dahl failed to sign
an initial set of answers to his interrogatories and that the
defendants improperly refused to produce financial
information. Specifically, the Court found that Ms.
Dahl signed supplemental and amended answers to
interrogatories “that effectively supersede[d] any
earlier answers” and that the initial set of
interrogatories “were propounded before Ms. Dahl was
even served with this lawsuit.” The Court also found
that Mr. Smith brought his motion with respect to Ms.
Dahl's financial information prematurely, as her
responses to the relevant discovery requests were not due at
the time the motion was filed. As to these first two issues,
the Court found that Mr. Smith's position was not
substantially justified and that an award of expenses was
appropriate under Fed.R.Civ.P. 37(a)(5)(B). Finally, the
Court concluded that Bradley Pizza's financial
information was not relevant, but reasoned that Mr.
Smith's position was substantially justified, so no award
of expenses was appropriate.
Court instructed defense counsel to file a short letter
memorandum and any affidavits, declarations, and exhibits to
establish the expenses and fees incurred in responding to Mr.
Smith's motion. The Order required defense counsel to
exclude any request for reimbursement of the fees and
expenses reasonably attributable to the request for Bradley
Pizza's information. And the Court required defense
counsel to file its requests within fourteen days, providing
seven days for Mr. Smith's response.
Court also granted portions of the relief sought by the
Defendants in their own motion to compel, but limited the
bases to recovery of fees to one portion of that motion.
Specifically, the Court: (1) granted in part and denied in
part the Defendants' request for production of settlement
information; (2) granted the Defendants' request for a
refund of expert-witness fees they were required to pre-pay
for the depositions of Mr. Smith's expert, Peter
Hansmeier; and (3) granted in part the Defendants'
request that their expert, Julie Quarve-Peterson, be paid
reasonable expert-witness fees. With respect to the first two
issues, the Court found that expenses should not be
apportioned for those issues. The Court also found that Mr.
Smith need not pay an award of expenses in contesting the
motion to compel Ms. Quarve-Peterson's travel time or
time spent preparing for her deposition. However, the Court
found that “Mr. Smith's refusal to pay [Ms.
Quarve-Peterson's] full hourly rate was not substantially
justified, and the Defendants are entitled to an award of
expenses incurred in bringing the motion to compel on that
issue.” The Court permitted the Defendants to request
payment of those expenses when filing the letter addressing
the fee-shifting discussed above.
November 16th Order
the Court issued the November 13th Order, the parties filed a
stipulation regarding the submission of the letter memoranda
and supporting documents on the issue of
fee-shifting. Mr. Smith indicated that he intended to
object to the Court's ruling on his motion to compel. On
November 16, 2018, the Court adopted the parties'
stipulation and “modifie[d] the Court's [November
13th] Order … to permit the submission of
Defendants' memorandum and fee petition to be filed
within 14 days of the District Court's ruling on
Plaintiff's objection to the Order at Docket Entry 159,
with Plaintiff's response thereto due within 5 days of
Fee Petition and Response
12, 2019, the District Court entered summary judgment in
favor of the Defendants, essentially concluding that the
Court lacks jurisdiction because the architectural barriers
complained of in Mr. Smith's Complaint have been
remedied.After the parties' efforts at resolving
their dispute regarding the fees discussed in the November
13th Order failed,  the Defendants filed a letter brief
requesting payment of $3, 873.50. [Defs.' Letter at 1-3.]
In arriving at this number, defense counsel attempted to
“evaluate the discovery motions as a whole, since
defendants' counsel's work on the motions was
interrelated, ” and then reduced the requested fees to
reflect the matters the Court found were appropriate for
shifting fees. [See Id. at 2-3.] Defense counsel
indicates that his firm billed the Defendants a total of $6,
351.50 for work on the parties' motions addressed in the
November 13th Order. The $3, 873.50 fee request represents a
reduced hourly rate for lead defense counsel, Edward Sheu,
and includes discounts for supervisory work, duplicative
effort, and other reasonable reductions. [Decl. for
Defs.' Attorney-Fee Request (“Fee Decl.”)
¶¶ 2-3, 10-12, 16, ECF No. 230-1.]
response to the fee petition, Mr. Smith asks for a
substantial reduction of the amount of a fee shifting award,
arguing that he should be required to pay no more than
$984.20. [Pl.'s Resp. at 5, ECF No. 231.] First, Mr.
Smith argues that $1, 225 should be eliminated from the
Defendants' request for an award of fees because several
of the time entries reflect expenses that the Defendants
would have incurred regardless of the issues that the Court
found supported fee-shifting. [Id. at 1-2 (citing
Fox v. Vice, 563 U.S. 826 (2011), and Goodyear
Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178
(2017)).] Second, he argues that an October 4, 2018 entry for
$245 should be removed from the request because it is unclear
how much time was attributable to the preparation of the
Defendants' motion to compel as opposed to other,
non-covered tasks. [Id. at 2.] Third, Mr. Smith ask
the Court to reduce the requested fee award by an additional
$138 for defense counsel's review of the Smith
deposition, suggesting it cannot be reasonably related to the
issue of Ms. Quarve-Peterson's appropriate hourly rate.
[Id. at 2-3.] Fourth, Mr. Smith objects to the
Defendants' request for reimbursement of 5.25 hours of
defense counsel's time spent drafting the Defendants'
motion to compel because the portion of that motion
attributable to the issues concerning Ms.
Quarve-Peterson's hourly rate could not have taken so
long to complete. [Id. at 3-4.] Fifth, Mr. Smith
argues that he should receive an overall 10% discount based
on his assertion that defense counsel must have given
Defendants substantial discounts for the work performed in
this case. [Id. at 4-5.] And finally, Mr. Smith
requests that the award be reduced by an additional $175 to
compensate for the portion of time that is reasonably
attributable to Mr. Smith moving to compel Bradley
Pizza's signature on discovery responses, which were not
supplied until after the hearing. He suggests he is entitled
to such an award under Fed.R.Civ.P. 37(a)(5)(A).
[Id. at 5.]
lodestar method is the starting point for determining the
amount of a reasonable attorney's fee. In re National
Hockey League Players' Concussion Injury Litig., MDL
No. 14-2551, 2017 WL 3276873 (D. Minn. Jul. 31, 2017) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). To
determine the lodestar, the Court multiplies a reasonable
number of hours expended on the motion by a reasonable hourly
billing rate. Id. The reasonable rate is what is
typical for similar work in the community in which a case is
being litigated, and “district courts may rely on their
own experience and knowledge of prevailing market
rates” in determining what is reasonable. Id.
(quoting Hanig v. Lee, 415 F.3d 822, 825 (8th Cir.
2005)). Courts have considerable discretion in determining
whether attorneys' fees are reasonable. See
Hensley, 461 U.S. at 437. “As a concession to the
mortality of judges, the law does not require a line-item
review of fee applications.” Romeo & Juliette
Laser Hair Removal, Inc. v. Assara I, LLC, No. 08 CIV.
442 (TPG)(FM), 2013 WL 3322249, at *3 (S.D.N.Y. July 2,
2013), aff'd, 679 Fed.Appx. 33 (2d Cir. 2017)
(quoting O'Toole v. Allied Interstate, LLC, No.
12 Civ. 4942(WHP), 2012 WL 6197086, at *1 (S.D.N.Y. Dec. 12,
the Court finds that the $350 hourly rate for Mr. Sheu and
the $230 hourly rate for his co-counsel, Mr. Linnerooth, are
reasonable hourly rates. The time entries reflected in the
documentation supporting the fee petition indicate that
Messrs. Sheu and Linnerooth spent 17.85 combined hours on the
issues that were reasonably attributable to the specific
issues for which the Court found that fee-shifting was
appropriate in the November 13th Order. Prior to the hearing,
Mr. Linnerooth spent 10.45 hours, for a total of $2, 403.50
in fees. Mr. Sheu spent 5.9 hours prior to the hearing, but
provided courtesy write offs for 4.2 hours of that time. This
amounts to a total of $595 in fees for Mr. Sheu's time.