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Hilsen v. American Sleep Alliance LLC

United States District Court, D. Utah, Central Division

April 19, 2017

KENNETH L. HILSEN, Plaintiff,
v.
AMERICAN SLEEP ALLIANCE, LLC, et al. Defendants.

          MEMORANDUM DECISION

          Dustin B. Pead, United States Magistrate Judge

         This 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).

         Background

         On 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 per hour.

         Mr. 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.)

         The 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 day 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.

         Analysis

         I. Mr. Farris must pay all reasonable expenses incurred in bringing the motion to compel, but not for the parties' efforts to meet and confer

         The 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.

         The 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 ...


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