United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge
October 22, 2019, the Court entered an Order granting Eric
Berg's motion to intervene for the limited purpose of
enforcing the Protective Order. [ECF No. 339.] In addition,
the Court ordered the defendants, Wendy Brown and A.W.
Companies, Inc., and their counsel, Alexander Loftus, to pay
Mr. Berg's the expenses, including attorney's fees,
caused by their intentional violations of the Protective
Order. [Id. at 13, ¶ 3.] The Court determined
that such an award was appropriate under Federal Rule of
Civil Procedure 37(b)(2).
Application and Response
Berg's counsel, Scott Moriarty, filed a declaration
demonstrating the reasonable fees and expenses caused by the
defendants' conduct and corresponding to the scope of the
Court's Order. [Moriarty Decl., ECF No. 342.] Mr.
Moriarty explains that his billable rate is $350.00 per hour
and that he spent 32.8 hours working on matters relating to
the enforcement of Mr. Berg's rights under the Protective
Order, for a total of $11, 480.00. [Id. ¶ 5.]
Specifically, consistent with the Court's Order, he
excluded time spent preparing a response to the
defendants' summary judgment motion in related state
court litigation. [Id. ¶ 6.] Mr. Moriarty's
paralegal spent 3.5 hours, at a rate of $190.00 per hour,
working on matters relating to the enforcement of the
Protective Order, for a total of $665.00. [Id.
¶ 7.] The defendants' and their attorneys'
conduct also caused Mr. Moriarty to order, at an increased
cost, an expedited transcript of Ms. Brown's deposition,
where the defendants' violation of the Protective Order
first came to light. [Id. ¶ 8.] In sum, Mr. Berg
seeks recovery of $12, 567.00 in fees and costs.
[Id. ¶ 10.]
response to the fee petition, the defendants argue:
Should fees or costs be awarded[, ] the amount sought by Berg
should be reduced significantly, to less than $3, 000, both
because the time incurred in relation to this briefing is
excessive and much of the time spent on communications with
counsel would have been incurred had the parties addressed
the issue prior to the use of the protected information which
the Hennepin County Court has since ordered be produced.
[Defs.' Mem. at 1, ECF No. 351.] Although the defendants
do not contend that Mr. Moriarty's or his paralegal's
hourly rates are unreasonable, they take issue with several
specific entries in his billing records. [Id. at
1-3.] Further, the defendants rely on an October 30, 2019
Order in the related state court litigation that requires Mr.
Berg to produce consulting agreements he entered between
October 1, 2015 and the present, even though the defendants
failed to pursue discovery in a timely manner. [Ex. A to
Defs.' Mem., ECF No. 352.] They suggest that this Order
“cur[es] the issue which initiated this whole
unfortunate series of events.” [Defs.' Mem. at 3.]
relevant Rule of Civil Procedure provides that “the
Court must order the disobedient party, the attorney advising
that party, or both to pay the reasonable expenses, including
attorney's fees, caused by the failure [to obey a
discovery order] unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(b)(2)(C). Courts determine the
amount of an award of a reasonable attorney's fee award
under Rule 37 by applying the lodestar method. See, e.g.,
Envirosource, Inc. v. Horsehead Resource Development Co.,
Inc., 981 F.Supp. 876, 881-82 (S.D.N.Y. 1998);
Porter v. Johnson, 2008 WL 2566749, at *1 (D.D.C.
June 25, 2008). This familiar method multiplies the number of
reasonably expended by a reasonable hourly rate. In re
RFC, __ F.Supp.3d __, 2019 WL 2567566 (D. Minn. June 21,
2019). “[I]n determining the lodestar, courts
‘need not, and indeed should not become green-eyeshade
accountants. The essential goal in shifting fees … is
to do rough justice, not to achieve auditing
perfection.” Id. (quoting Fox v.
Vice, 563 U.S. 826, 838 (2011)).
is no dispute that Mr. Moriarty's hourly rate for his own
services and for his paralegal are reasonable. Based on the
absence of such a dispute, the support Mr. Moriarty provided
regarding the reasonableness of these rates, and the
Court's own knowledge of the prevailing rates in the
relevant legal community, the Court finds that a reasonable
hourly rate for Mr. Moriarty is $350.00 per hour. The $190.00
per hour rate for his paralegal is also reasonable. There is
also no dispute that the $422.00 associated with ordering the
expedited transcript of Ms. Brown's deposition is
likewise a reasonable expense caused by the defendants'
and Mr. Loftus's failure to comply with the Protective
defendants challenge the reasonableness of the time Mr.
Moriarty spent litigating the violations of the Protective
Order. They assert that “several … items [in the
submitted billing records] stand out as plainly excessive,
” followed by a list of certain time entries from Mr.
Moriarty's billing records. [Defs.' Mem. at 1-2.]
They take issue with 4 hours Mr. Moriarty spent preparing for
the hearing on the motion; 20.6 hours he and his paralegal
spent preparing, revising, and filing Mr. Berg's briefing
in federal court; and 6.2 hours spent drafting letters to
opposing counsel and to the state court. [Id.]
Defendants argue that “[a] client wouldn't pay a
bill for 20 hours of time drafting what the Court concluded
was a straight forward motion nor would four hours of
preparation for a thirty minute hearing survive in a
competitive marketplace.” [Id. at 2-3.]
Court is not persuaded by the defendants' argument that
Mr. Berg seeks to recover fees for excessive time spent
litigating their violations of the Protective Order. Before
Mr. Berg filed his motion to intervene and for sanctions, Mr.
Moriarty attempted to resolve the matter with opposing
counsel through well-reasoned and thorough letters that
pointed out the violations of the Protective Order. Rather
than engage him in a discussion of the issues or take action
to remedy the blatant violations, defense counsel offered
only silence. Unable to make any headway with opposing
counsel, Mr. Moriarty was forced to research, draft, and file
a motion to intervene and for sanctions. The motion was
supported by a persuasive 19-page memorandum.
Mr. Berg's motion was filed, the defendants and Mr.
Loftus chose not to take any action that would have
eliminated the need for Mr. Moriarty to further litigate
their violations of the Protective Order. Instead, they
argued that their actions were completely justified, that Mr.
Berg had suffered no harm, and that he had no business
intervening for the limited purpose of enforcing his rights
under the Protective Order. Staking out such a position
justified Mr. ...