United States District Court, D. Utah
INTERMOUNTAIN WIND & SOLAR, LLC, a Utah limited liability corporation, Plaintiff,
ALL AMERICAN EXTERIORS, LLC, D/B/A MOUNTAIN STATES SOLAR, Defendants.
Nuffer District Court Judge.
MEMORANDUM DECISION & ORDER
B. Pead U.S. Magistrate Judge.
case is before Magistrate Judge Dustin Pead pursuant to a 28
U.S.C. §636 (b)(1)(A) referral. (Dkt. No. 4.) Currently
pending is Plaintiff Intermountain Wind & Solar,
LLC's (Plaintiff or IWS) motion for attorney fees and the
declaration of attorney Brent P. Lorimer. (Dkt. No. 29.)
Defendant All American Exteriors, LLC d/b/a/ Mountain States
Solar (Defendant or MSS) objects to Plaintiff's motion
arguing the fees requested are excessive and unnecessary.
(Dkt. No. 32.)
April 19, 2017, the court issued an Order granting
Plaintiff's motion to compel as to Interrogatories 1, 2,
7, 8, 9, 10 and 11 and Requests for Production 2, 4, 6, 7, 8,
11, 12, 30, 36, 37, 38, 39, 41, and 42. (Dkt. No. 28.) Based
thereon and pursuant to Federal Rule of Civil Procedure 37,
the court awarded Plaintiff, as the prevailing party, its
“reasonable expenses incurred in making the motion,
including attorney's fees” and ordered IWS to
submit a declaration in support. Fed.R.Civ.P. 37(a)(5)(A);
see also Farrar v. Hobby, 506 U.S. 103, 111, 113
S.Ct. 566, 121 L.Ed.2d 494 (1992) (a prevailing party
“must obtain at least some relief on the merits of his
April 25, 2017, Plaintiff submitted a motion for attorney
fees along with the declaration of attorney Brent P. Lorimer
in support of the attorney fees incurred in conjunction with
its motion to compel. (Dkt. No. 29.) Several days later,
Defendant filed an objection to the motion (Dkt. No. 32)
supported by the declaration of MSS's attorney Chad
Steur. (Dkt. No. 32-1.)
FOR ATTORNEY'S FEES
to determine the amount of a fee award lies within the
district court. Sun River Energy, Inc. v. Nelson,
800 F.3d 1219, 1228 (10th Cir. 2015). A reasonable
attorney fee is determined by calculating the lodestar.
Clayton v. Steinagel, 2012 U.S. Dist. LEXIS 180449
*2 (D. Utah, Dec. 19, 2012). Lodestar is “. . . the
product of a reasonable rate in the relevant community
multiplied by the number of hours reasonably spent on the
litigation.” Lippoldt v. Cole, 468 F.3d 1204,
1222 (10th Cir. 2006). The lodestar amount may be
adjusted in order to account for the particularities of the
specific case. See Zinna v. Congrove, 680 F.3d 1236,
1242 (10th Cir. 2012).
declaration divides the attorney fees requested between:
attorney Brent Lorimer billing 5.0 hours at a rate of $500.00
per hour (5.0 x 500=$2, 500.00), associate attorney Brittany
Frandsen billing 34.3 hours at a rate of $225.00 per hour
(35.3 x 225=$7, 717.50) and paralegal Kimberly Bernhardt
billing 2.6 hours at a rate of $145.00 per hour (2.6 x
145=$377.00). In total, IWS requests an award of fees in the
amount of $10.594.50 (2, 500 , 717.50 377.00=$10, 594.50)
(Dkt. No. 29.)
opposes the motion arguing the merits of the underlying case
while simultaneously admonishing IWS for using “the
legal process to inflict an economic injury that would
nullify Defendant's ability to seek the protection of the
laws.” (Dkt. No. 32. p. 2.) Regarding fees, MSS does
not assert that the hourly rates are inappropriate, but
claims the hours spent by Plaintiff are excessive.
Defendant's claim falls into two main categories: (1)
telephone calls with Attorney Frandsen; and (2) time spent
drafting the short and long form motions to compel. (Dkt. No.
32-1.) The court addresses each of these categories.
Calls With Attorney Frandsen.
argues billing 4.5 hours for telephone conferences is
excessive since most of the communications involved attorney
Steur providing mentoring, “encouragement and
advice” to “new” attorney Frandsen and did
not pertain to any discovery related disputes. IWS, on the
other hand, claims the purpose of the telephone conferences
was to persuade MSS to produce relevant information and that
attorney Frandsen was not in need of any mentoring on the
subject matter of the requested discovery.
parties provide competing interpretations of the nature of
the telephone calls at issue. The court declines any
invitation to divine the substance of those conversations.
Understandably, personal pleasantries are a part of
telephonic communications and there is no indication that
either party was forced to engage in off-topic discussions,
if any. ...