*1 On this day, the Court considered Plaintiff Napoleon Campos's (“Plaintiff”) “Amended Request for Attorney's Fees” (“Amended Request”) filed in the above-captioned case on November 29, 2021. ECF No. 25. Therein, Plaintiff requested that this Court issue an “Order requiring Defendant East El Paso Physicians' Medical Center, LLC [“Defendant”] ... to pay $30,000 in costs and attorney's fees ... in connection with Defendant's discovery failures ....” Id. The Court ordered Defendant to respond to the Amended Request. ECF No. 28. Defendant filed a Response on January 18, 2022, in which it largely accepted responsibility for its failure to properly respond to Plaintiff's discovery requests and disputed only the amount of fees attributable to that failure. Response, ECF No. 29. After due consideration, the Court is of the opinion that Plaintiff's Amended Request should be granted with modification.

Plaintiff, a doctor, commenced this action on April 2, 2020, alleging that his former employer, East El Paso Physicians' Medical Center, had committed fraud when it sold him securities after seriously misrepresenting its financial situation. Compl. 2–4, ECF No. 1. What had allegedly been presented to Plaintiff as a profitable company was, by the time the Complaint was filed, considering bankruptcy and having trouble finding qualified counsel to represent it. See Resp. to Order to Show Cause 2, ECF No. 9.

Plaintiff submitted an initial discovery request on October 9, 2020. Mot. for Continuance 2, ECF No. 16. On June 11, 2021, in a Motion for Continuance, Plaintiff stated that he “ha[d] yet to receive any discovery in preparation for trial.” Id. A month later, Plaintiff filed a Motion to Compel, in which he requested, among other things, reasonable attorney's fees related to Defendant's failure to comply with discovery requests. Mot. to Compel, ECF No. 18. The Court ordered Defendant to respond to the Motion to Compel. Order to Show Cause, ECF No. 20. Plaintiff then filed a Motion for Sanctions requesting attorney's fees related to “(1) Defendant's failure to produce witnesses to appear for multiple depositions; ... (2) Defendant's failure to serve answers, objections, or written responses to Plaintiff's discovery requests; [and] (3) Plaintiff prosecuting this motion and the previous Motion to Compel ....” Mot. for Sanctions 1, ECF No. 19. Instead of a response to either the Motion to Compel or the Motion for Sanctions, Defendant's counsel of record filed a Motion to Withdraw. Mot. to Withdraw, ECF No. 21. Counsel indicated that he had been retained only as local counsel by another attorney representing the Defendant and that his continued representation was “untenable” due to communication problems with that attorney and with the Defendant company itself. Id. at 1–3. The Court granted the request. Order, ECF No. 22.

Plaintiff shortly thereafter submitted the Amended Request now before the Court, asking for attorney's fees in the amount of $30,000, based on 75 hours of work at $400 per hour. Amend. Request 2, ECF No. 25. The Court, once again, ordered Defendant to respond. Order to Show Cause, ECF No. 20. Once it had retained new counsel, Defendant did so. Resp., ECF No. 29. Defendant admitted in its Response that it “failed in its obligation to make discovery,” accepted responsibility for fees Plaintiff incurred as a result of Defendant's failure. Id. at 1, 3. Moreover, Defendant did not dispute Plaintiff's proposed hourly fee. Id. at 3. However, Defendant does argue that the total hours Plaintiff claimed should be reduced because they were either (1) not attributable to Defendant's sanctioned conduct or (2) excessive in nature. Id. at 3.

*2 When a motion to compel discovery is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A).

Further, when a party “fail[s] to attend its own deposition, [or] serve answers to interrogatories ..., [a court] may, on motion, order sanctions if: (i) a party or a party's officer, director, or managing agent ... fails, after being served with proper notice, to appear for that person's deposition; or (ii) a party, after being properly served with interrogatories under Rule 33 ..., fails to serve its answers, objections, or written response.” Fed. R. Civ. P. 37(d)(1). “[T]he court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3).

Attorneys fees are calculated in the Fifth Circuit using the “lodestar method.” Tollett v. City of Kemah, 285 F.3d 357, 367 (5th Cir. 2002). The “lodestar” is determined “by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work.” Id. Courts apply the “Johnson factors” in determining the reasonableness of an award. See Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717–719 (5th Cir. 1974) (providing multiple factors to consider when considering an award of attorneys fees). In determining the “hours reasonably expended,” they exclude “all time that is excessive, duplicative, or inadequately documented.” Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).

Defendant disregarded nearly all discovery requests from the Plaintiff. The Court finds, and Defendant does not dispute, that such conduct warrants sanctions in the form of an award of attorneys fees to Plaintiff. Resp. 3, ECF No. 29.

Defendant also does not dispute the reasonableness of the $400 hourly rate requested by Plaintiff. See id. Upon examination according to the factors prescribed by the Fifth Circuit in Johnson, the Court also finds the rate reasonable. See Johnson, 488 F.2d 714, 717–719. Nothing about the facts of the case or the circumstances faced by the attorneys suggests that any deviation from an hourly rate customarily charged by an experienced attorney is necessary. See id.

The Court does not, however, find reasonable the 75 hours claimed by Plaintiff. In determining the appropriate number of hours, the Court “weigh[s] the hours claimed against [its] own knowledge, experience, and expertise of the time required to complete similar activities.” Johnson, 488 F.2d at 717. It begins with “counsel's affidavit and the attached billing records.” See Tollett, 285 F.3d at 367. And it excludes “all time that is excessive, duplicative, or inadequately documented.” Watkins, 7 F.3d at 457.

In his Affidavit, Plaintiff claims 75 hours of work are attributable to Defendant's conduct. Affidavit 1, ECF No. 25 ECF No. 25 at 6. However, the time sheet submitted by Plaintiff shows only 73 hours of work. Time Sheet 1–2, ECF No. 25 at 12–13. Thus two hours are excluded as “inadequately documented.” Watkins, 7 F.3d at 457.

*3 A further 32 hours of work will be excluded as it would have been performed regardless of Defendant's failure to respond. Plaintiff is entitled only to “reasonable expenses ... caused by the [Defendant's] failure.” Fed. R. Civ. P. 37(d)(3); see also Tollett, 285 F.3d at 364 (“Rule 37 provides that only the expenses and fees caused by the failure to comply may be assessed ....”). Fees related to the preparation of the Motion for Continuance, the Motion to Compel, and the Motions for Sanctions and Attorneys Fees are attributable to the Defendants failure to respond to discovery requests, as such preparation would not have been necessary if Defendants had complied with the discovery requests. See Time Sheet 1–4, ECF No. 25 at 12–15; Affidavit 1–2, ECF No. 25 at 6–7. However, fees that Plaintiff would have incurred even if Defendant had been perfectly responsive cannot be attributed to Defendant's failure and are thus not authorized by Rule 37. The Court therefore will not order Defendant to pay for the following work, all performed prior to the filing of Motion for Continuance:

Time Sheet 1–2, ECF No. 25 at 12–13; see also Affidavit 1–2, ECF No. 25 at 6–7. The Court will deduct these 32 hours from the total.

The Court also notes that Plaintiff requests three hours of payment for each of five missed depositions. Time Sheet 1–2, ECF No. 25 at 12–13. Under Rule 37(d), if “a party or a party's officer, director, or managing agent ... fails, after being served with proper notice, to appear for that person's deposition ..., the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure.” Fed. R. Civ. P. 37(d). In determining the reasonableness of particular expenses, “[t]he trial judge should weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities.” Johnson, 488 F.2d at 717. The Court acknowledges that there are expenses associated with depositions. However, a request for two hours of attorney's fees for “Non-Appearance” in addition to one hour for “Deposition Expenses” is excessive. See Time Sheet 1–2, ECF No. 25 at 12–13. It will allow one hour for expenses and one hour for each non-appearance, excluding a total of 5 hours as “excessive.” Watkins, 7 F.3d at 457.

The remaining 36 hours are reasonably attributable to the Defendant's failure to respond to Plaintiff's discovery requests. Thus the Court will award Plaintiff fees for 36 hours of work at $400 per hour.

The Court finds $400 to be a reasonable hourly rate, but does not find that Defendant's failure to adequately respond to Plaintiff's discovery requests led to the 75 hours of work claimed by Plaintiff. It excludes two hours as “inadequately documented,” 32 hours as being unrelated to the conduct giving rise to sanctions, and 5 hours as excessive in relation to their asserted basis. The Court concludes that 36 hours are attributable to the Defendant, and thus the Defendant is responsible for $14,400 in attorney's fees.

Accordingly, IT IS HEREBY ORDERED that Plaintiff Napoleon Campos's “Amended Request for Attorney's Fees,” ECF No. 25, is GRANTED.

IT IS FURTHER ORDERED that Defendant East El Paso Physicians Medical Center, LLC shall pay $14,400 in attorney's fees to Plaintiff.

IT IS FINALLY ORDERED that Plaintiff Napoleon Campos's “Motion for Sanctions,” ECF No. 19, and “Motion for Attorney's Fees,” ECF No. 24, are MOOT.

SIGNED this 29th day of April 2022.