One Step Up, Ltd. v. Wahoo Creek Trading Co.
One Step Up, Ltd. v. Wahoo Creek Trading Co.
2021 WL 9782172 (N.D. Ga. 2021)
November 3, 2021

Story, Richard W.,  United States District Judge

Sanctions
Cooperation of counsel
Failure to Produce
Cost Recovery
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Summary
The Court did not address any ESI. Instead, the Court granted Plaintiff's Supplemental Brief and ordered Defendants to pay sanctions in the amount of $5,335 to Plaintiff's counsel within thirty days of the date of the Order.
Additional Decisions
ONE STEP UP, LTD., Plaintiff,
v.
WAHOO CREEK TRADING COMPANY, INC., FLOOD SUPPLIER, LLC, JAMES L. MCMILLIN, SR., JAMES L. MCMILLIN, JR., TAMMYE CAGLE, AND ED CAGLE, Defendants
Civil Action No. 2:18-CV-00022-RWS
United States District Court, N.D. Georgia, Gainesville Division
Filed November 03, 2021

Counsel

David John Forestner, Jones Walker LLP, Atlanta, GA, Harlan M. Lazarus, Lazarus & Lazarus, P.C., New York, NY, for Plaintiff.
Robert David Arkin, Arkin.Law, Atlanta, GA, for Defendant James L. McMillin.
Michael Brent James, Harriss & Hartman Law Firm, Rossville, GA, for Defendants Tammye Cagle, Ed Cagle.
James L. McMillin, Gainesville, GA, Pro Se.
Story, Richard W., United States District Judge

ORDER

*1 This case comes before the Court on Plaintiff One Step Up, Ltd.'s Supplemental Brief in Support of its Motion for Contempt Seeking Monetary Sanctions [Dkt. 218]. For the reasons detailed below, Plaintiff's Motion is GRANTED.
 
BACKGROUND
On March 17, 2021, Plaintiff served Defendants James L. McMillin Sr. and James L. McMillin Jr. with interrogatories and requests for production of documents in aid of execution of the judgment issued by this Court. Defendants' written responses were due by April 16, 2021. Neither Defendant provided any responses or objections to Plaintiff's discovery requests.
 
After Defendants' response deadline passed, Plaintiff's counsel attempted to confer with counsel for Defendants at least three separate times. Nevertheless, Defendants still failed to provide any written responses to Plaintiff's discovery requests, so Plaintiff filed a Motion to Compel and for Sanctions on May 11, 2021 [Dkt. 196]. Defendants still did not provide any written response to Plaintiff's discovery requests, and they failed to respond to Plaintiff's Motion by the deadline. Accordingly, on June 15, 2021, the Court granted Plaintiff's unopposed Motion, ordering Defendants to comply with Plaintiff's discovery requests within fourteen days [Dkt. 198]. The Court also granted Plaintiff's request for an award of attorneys' fees and instructed Plaintiff to submit a statement of costs and any evidence it wished the Court to consider regarding the attorneys' fees it incurred in bringing its Motion.
 
Plaintiff then filed its Supplemental Brief in Support of its Motion for Sanctions [Dkt. 199], asking the Court to order Defendants to pay it $4,200. At the same time, Defendants moved for relief from the Court's June 15, 2021 Order and requested an extension of the discovery period [Dkt 200]. On July 26, 2021, the Court denied Defendants' request, ordered Defendants to serve responses to Plaintiff's discovery requests within seven days, and ordered Defendants to pay sanctions of $2,800 to Plaintiff's counsel within fourteen days [Dkt. 204].
 
On August 2, 2021, Defendants moved for an extension of time to respond to Plaintiff's discovery requests, because Defendants' counsel's brother had just passed away [Dkt. 205]. Plaintiff did not oppose Defendants' motion, so the Court granted it and gave Defendants until August 15, 2021 to complete discovery [Dkt. 206]. The revised discovery deadline came and passed, and Defendants neither served their responses to Plaintiff's discovery requests nor paid their attorneys' fees sanction. Accordingly, on August 19, 2021, Plaintiff filed a Motion for Contempt, asking the Court to hold Defendants in civil contempt and order additional sanctions against them [Dkt. 208]. Defendants did not respond to this Motion. The Court ordered Defendants to appear in person for a hearing on Monday, September 20, 2021 and show cause why they should not be held in contempt and why appropriate civil contempt sanctions, including but not limited to incarceration, should not be imposed to compel their compliance with the Court's orders [Dkt. 209].
 
*2 On Friday, September 17, 2021, the Court exchanged correspondence with the parties to determine whether the show cause hearing was still necessary or if Defendants had fully complied with the Court's orders. The parties told the Court that Defendants had paid the attorneys' fees sanction but had not yet served responses to Plaintiff's discovery requests. Defendants' counsel asked the Court to continue the show cause hearing and grant them an additional week to respond to Plaintiff's discovery requests. As counsel had admitted Defendants had not met their discovery obligations, the Court informed Defendants' counsel that a hearing would not be required if Defendants wished to waive the hearing and admit that they had not complied with the Court's orders and were therefore in willful contempt. Defendants' counsel stated his clients waived a hearing and admitted they were in willful contempt of this Court's orders. Accordingly, the Court held Defendants in willful contempt and ordered them to purge themselves of the contempt by noon on September 24, 2021 by providing complete responses to Plaintiff's discovery requests [Dkt. 210].
 
The Court corresponded with the parties after the deadline on September 24, 2021, at which time the parties agreed that Defendants had partially complied with Plaintiff's discovery requests, but that those responses were incomplete. On Monday, September 27, 2021, the Court ordered counsel for the parties to confer by telephone to determine the status of Defendants' responses and to report that status to the Court [Dkt. 214]. Counsel for the parties conferred and confirmed to the Court that certain categories of documents were missing from Defendants' discovery responses. Importantly, though, counsel for Defendants confirmed that his clients intend to expeditiously supplement their responses with the remaining requested documents. As a result, the Court stayed Defendants' contempt pending the completion of their discovery obligations [Dkt. 216].
 
On October 15, 2021, Plaintiff filed its Supplemental Brief in Support of its Motion for Contempt Seeking Monetary Sanctions [Dkt. 218]. Plaintiff asks this Court to order Defendants and/or Defendants' counsel to pay $5,335 in monetary sanctions to account for the additional time Plaintiff's counsel spent preparing its Motions for Contempt and Sanctions. Defendants did not respond to or oppose Plaintiff's Supplemental Brief.
 
DISCUSSION
Plaintiff's Supplemental Brief detailed its counsel's current rates and the time he spent working on the Motions for Contempt and Sanctions. Plaintiff's counsel currently charges $350 per hour for his legal services and $300 per hour for his associate's legal services. (Decl. of David J. Forestner, Dkt. [218-1], at ¶ 6.) Plaintiff's counsel contends that he and his associate spent 13.4 hours researching and drafting the Motions for Contempt and Sanctions and communicating with opposing counsel and the Court. (Fee Statement, [Dkt. 218-2].) Plaintiff's counsel's fee statement for the relevant period, which is attached as an exhibit to the Supplemental Brief, details the time he and his associate spent working on each task. (Id.) Plaintiff therefore asks this Court to order Defendants to pay $5,335, which constitutes Plaintiff's counsel's 13.4 hours of work (12.3 hours by Mr. Forestner at his current hourly rate of $350, and 1.1 hours by his associate at his current hourly rate of $300) and $700 of expenses. (Id.; Pl.'s Supp. Br., Dkt. [218], at 4.)
 
“The Eleventh Circuit has adopted the lodestar method to assess the reasonableness of attorney's fees, which multiplies the hours reasonably expended by a reasonable hourly rate.” Moore v. Intuitive Surgical, Inc., 2019 WL 10784544, at *2 (M.D. Ga. Apr. 1, 2019) (citation, punctuation, and quotations omitted). The party requesting fees “bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Downtown Sports, Inc. v. Legacy AH, LLC, 2011 WL 13162100, at *18 (N.D. Ga. Mar. 11, 2011) (citation and quotations omitted). “That burden can be satisfied where the fee applicant provides the court with records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity.” Id. (citation and quotations omitted). The court must assess “both the reasonableness of the rate and of the hours.” Id. (citation omitted).
 
*3 “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citations omitted). While generally more evidence than just the affidavit of the attorney performing the work is required, “the court may rely on its own judgment and experience to determine an appropriate rate.” Downtown Sports, Inc., 2011 WL 13162100, at *18 (citation omitted). Based on the Court's own judgment and experience, the Court finds that Plaintiff's counsel's $350 and $300 rates for Mr. Forestner and his associate, respectively, are reasonable.
 
Next the Court must determine whether Plaintiff's requested hours are reasonable. Id. (citation omitted). Again, Plaintiff's counsel asserts that he spent 13.4 hours researching and drafting the Motions for Contempt and Sanctions and communicating with opposing counsel and the Court. (Fee Statement, [Dkt. 218-2].) The Court finds that Plaintiff's counsel's 13.4 hours of work are reasonable.
 
As this Court has already held, but reiterates here, Plaintiff's request for attorneys' fees is GRANTED. The Court now finds that Plaintiff's requested attorneys' fees are reasonable. Accordingly, Defendants are ordered to pay sanctions in the amount of $5,335 to Plaintiff's counsel within thirty days of the date of this Order.
 

CONCLUSION
For the foregoing reasons, Plaintiff One Step Up, Ltd.'s Supplemental Brief in Support of its Motion for Contempt Seeking Monetary Sanctions [Dkt. 218] is GRANTED. Defendants James L. McMillin, Sr. and James L. McMillin, Jr. are hereby ORDERED to pay sanctions in the amount of $5,335 to Plaintiff's counsel within thirty days of the date of this Order.
 
SO ORDERED this 3rd day of November, 2021.