United States District Court, D. Utah, Central Division
KENNETH L. HILSEN, Plaintiff,
AMERICAN SLEEP ALLIANCE, LLC, et al. Defendants.
B. Pead, United States Magistrate Judge
case is presently before the court on Shawn T. Farris's
“Objection to Hilsen Memorandum of Costs Relating to
Motion to Compel.” (ECF No. 117).
January 10, 2017, the court ordered Mr. Farris to pay the
costs, including attorney fees, related to Plaintiff's
motion to compel pursuant to Federal Rule of Civil Procedure
37(a)(5)(A). (ECF No. 110.) The order stated, in pertinent
part: “Mr. Farris must pay Plaintiff's reasonable
expenses incurred in bringing the motion to compel.”
(Id.) Plaintiff's counsel submitted a Verified
Memorandum of Costs Relating to Motion to Compel
(“Verified Memorandum”) requesting payment of
attorney fees for a 35.3 billable hours split between two
attorneys for a total fee award of $11, 029.00. (ECF No.
112.) Mr. Billings' 15.6 hours were billed at $265 per
hour and Mr. Stormont's 19.7 hours were billed at $350
Farris objects to the attorney fees in the Verified
Memorandum as unreasonable based on the amount of time
claimed to have been expended on a relatively simple task and
because the services were duplicated by multiple lawyers
rather than assigned to staff or law clerks. Mr. Farris also
objects to the time claimed for preparing the Verified
Memorandum and responding to this court's Docket Text
Order dated November 18, 2017. (See ECF No. 87.)
history that led to the sanctions against Mr. Farris can be
found in the court's January 10, 2017, Order. (ECF No.
110.) The court will not repeat each fact here, but will
briefly summarize. Mr. Farris repeatedly failed to respond to
discovery requests and claimed multiple times to have not
seen emails properly sent to him. The court warned Mr. Farris
that his failure to comply with deadlines or to respond to
opposing counsel could lead to sanctions against him and his
client. Despite that warning, Mr. Farris repeatedly failed to
meet discovery deadlines and extensions to those deadlines.
That failure led to the motion to compel at issue here.
the motion was filed, the court issued an order to show cause
requiring Mr. Farris to explain why his clients should not
have been immediately compelled at that time to turn over the
materials sought by the motion. (ECF No. 84.) Mr. Farris
offered no reason the materials should not have been
produced, but claimed he turned over all requested materials.
(ECF No. 86.) Despite this claim, Plaintiff later
demonstrated that certain materials had not been provided.
(See ECF No. 96.) The court ordered immediate
production of those materials. (ECF No. 97.) Despite the
efforts from the court and counsel, Plaintiff stated in his
reply to the motion to compel that certain discovery requests
remained unanswered even though Mr. Farris and his clients
raised no objection to those requests.
Mr. Farris must pay all reasonable expenses incurred in
bringing the motion to compel, but not for
the parties' efforts to meet and confer
court will calculate the appropriate fee using the
“lodestar amount which is the product of reasonable
hours times a reasonable rate normally provides the
reasonable attorney fees . . . .” Cooper v. State
of Utah, 894 F.2d 1169, 1171 (10th Cir. 1990). As
Plaintiff points out, there is no objection to the billing
rate of the two attorneys involved in this matter. The court
finds the rates are reasonable for the Salt Lake market.
Thus, the court turns to the hours claimed.
court enjoys discretion to determine the amount of reasonable
hours. See Jane L. v. Bangerter, 61 F.3d 1505, 1510
(10th Cir. 1995). Under the authority Mr. Farris cites, the
court may properly consider the following factors:
(1) whether the tasks being billed “would normally be
billed to a paying client, ”
(2) the number of hours spent on each task, (3) “the
complexity of the case, ” (4) “the number of
reasonable strategies pursued, ” (5) “the
responses necessitated by the maneuvering of the other side,
” and (6) “potential duplication of
services” by multiple lawyers.
Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). The fee applicant “bears the burden
of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Mares
v. Credit ...