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Intermountain Wind & Solar, LLC v. All American Exteriors, LLC

United States District Court, D. Utah

May 16, 2017

INTERMOUNTAIN WIND & SOLAR, LLC, a Utah limited liability corporation, Plaintiff,

          David Nuffer District Court Judge.


          Dustin B. Pead U.S. Magistrate Judge.


         This 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.)


         On 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 claim.”)

         On 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.)


         Discretion 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).

         Plaintiff's 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.)

         Defendant 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.

         Telephone Calls With Attorney Frandsen.

         Defendant 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.

         The 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.[1] ...

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