*1 Now before the Court is Plaintiffs Tom Ferguson and Gregg Browne's (collectively, Plaintiffs) Application for Attorney's Fees. ECF No. 32. On June 22, 2023, the Court granted Plaintiffs' motion to compel discovery against Defendant Southwest Regional PCR, LLC, doing business as MicroGenDX, LLC (MicroGen). ECF Nos. 19, 27. The undersigned provided MicroGen an opportunity to be heard as to why the Court should not award Plaintiffs reasonable fees and costs under Federal Rule of Civil Procedure 37(a)(5)(A). ECF No. 27. MicroGen filed its brief, and Plaintiffs thereafter filed a response. ECF Nos. 34, 37. The Court also allowed MicroGen to file objections to Plaintiffs' fee application (ECF No. 27), but none were filed. For the following reasons, the Court GRANTS Plaintiffs' Application for Attorney's Fees.

A. Under the circumstances presented herein, Rule 37(a)(5)(A) requires an award of attorney's fees.

Federal Rule of Civil Procedure 37 requires that, if 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 “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). The rule also provides three exceptions under which the Court should not award expenses: (1) “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action”; (2) “the opposing party's nondisclosure, response, or objection was substantially justified”; or (3) “other circumstances make an award of expenses unjust.” See FED. R. CIV. P. 37(a)(5)(A)(i)–(iii).

MicroGen invokes only one of three exceptions under Rule 37(a)(5)(A)—it asserts that an award of fees would be unjust because its discovery responses were not made in bad faith and Plaintiffs have not been prejudiced. ECF No. 34, at 3. Plaintiffs challenge both arguments, contending that neither circumstance, even if true, renders a fee award unjust under the rule. ECF No. 37, at 4–5. Further, Plaintiffs argue that “MicroGen's actions qualify as gamesmanship” and Plaintiffs have been prejudiced in several ways. Id. at 6–9.

The Court agrees that “a finding of bad faith is not a prerequisite for the award of reasonable expenses under Rule 37(a)(5)(A).” Architectural Granite & Marble, LLC v. Pental, No. 3:20-CV-295-L, 2023 WL 121996, at *3 (N.D. Tex. Jan. 6, 2023); see Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1018-19 (5th Cir. Unit A June 1981) (finding no merit to argument that “an award of expenses ... in connection with a motion to compel discovery” “can only be imposed upon a finding of bad faith”); Alvarez v. Wallace, 107 F.R.D. 658, 662 (W.D. Tex. 1985) (reviewing changes to prior version of the rule and concluding “that any judicial gloss on the statute that suggests that a showing of bad faith or other vexacious [sic] conduct is required before a court awards expenses is in error”). To the contrary, an award of reasonable expenses is presumptively mandatory under the rule. See, e.g., Clapper v. Am. Realty Invs., Inc., No. 3:14-CV-2970-D, 2018 WL 11430844, at *2 (N.D. Tex. Sept. 24, 2018); Alaniz v. H& H Farms, LLC, No. 1:09-CV-113, 2016 WL 11546302, at *4 (S.D. Tex. Apr. 14, 2016). There is nothing inherently unjust in enforcing the rule as written.

*2 Neither is the Court persuaded by MicroGen's second argument. To begin, MicroGen provides no support for its position that the opposing party must suffer harm under Rule 37(a)(5)(A). Cf. Canyon Furniture Co. v. Rueda Sanchez, No. SA-18-cv-00753-OLG, 201 8 WL 6265041, at *17 (W.D. Tex. Nov. 8, 2018) (concluding “it is improper to take a ‘no harm, no foul’ approach to ... discovery violations”). Second, Plaintiffs have suffered prejudice in the form of delay (e.g., taking depositions without relevant discovery materials) and incurring litigation expenses by bringing the motion to compel. See Thermotek, Inc. v. Orthoflex, Inc., No. 3:10-CV-2618-D, 2016 WL 6330429, at *5 (N.D. Tex. Oct. 27, 2016); see also Prasad v. Cnty. of Sutter, No. 2112–CV–00592 TLN JFM, 2013 WL 3773894, at *1 (E.D. Cal. July 17, 2013) (“[P]laintiffs have been prejudiced by, at the very least, having to conduct depositions without documents relevant to plaintiffs' claims.”); JSC Foreign Econ. Ass'n Technostroyexport v. Int'l Dev. & Trade Servs., Inc., No. 03Civ.5562JGKAJP, 2005 WL 1958361, at *17 (S.D.N.Y. Aug. 16, 2005) (stating that “the expenditure of money in legal fees constitutes the prejudice”).

“The great operative principle of Rule 37(a)(5) is that the loser pays.” Mr. Mudbug, Inc. v. Bloomin' Brands, Inc., No. 15-5265, 2017 WL 448575, at *3 (E.D. La. Feb. 1, 2017) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2288 (3d ed. 2016)). “Fee shifting when the judge must rule on discovery disputes encourages their voluntary resolution and curtails the ability of litigants to use legal processes to heap detriments on adversaries (or third parties) without regard to the merits of the claims.” Rickels v. City of S. Bend, 33 F.3d 785, 787 (7th Cir. 1994). MicroGen has not rebutted the payment presumption because it has not identified any special circumstances that would render an attorney's fees award unjust. Moreover, Plaintiffs have shown that they tried to resolve the dispute in good faith without court intervention, and the Court's prior order establishes that MicroGen's conduct was not substantially justified. Accordingly, the Court finds that none of the Rule 37(a)(5)(A) exceptions apply, and Plaintiffs are entitled to reasonable expenses including attorney's fees.

B. The Fee Award

“Reasonable attorneys' fees are determined through a two-step process,” otherwise known as the lodestar method. Fessler v. Porcelana Corona de Mex., S.A. DE C.V., 23 F.4th 408, 415 (5th Cir. 2022). The lodestar is calculated by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. Id. The court may then “enhance or decrease the amount of attorney's fees based on the relative weights of the twelve factors set forth in Johnson.” Black v. SettlePou, P. C., 732 F.3d 492, 502 (5th Cir. 2013) (internal quotation marks omitted); see Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989).[2] “The lodestar, however, is presumptively reasonable and should be modified only in exceptional cases.” Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The movant must support the fee application with documentation evidencing the reasonableness of the fees and expenses, and the party desiring modification of the lodestar bears the burden of establishing that a reduction is justified. Fessler, 23 F ,4th at 415–16.

*3 “Additionally, a party seeking attorneys' fees may only recover for time spent in preparing and prosecuting the actual discovery motion—that is, the ‘reasonable expenses incurred in making the motion, including attorney's fees.’ ” Lohr v. Gilman, No. 3:15-cv-1931-BN, 2018 WL 3993725, at *3 (N.D. Tex. Aug. 21, 2018) (quoting FED. R. CIV. P. 37(a)(5)(A)). “This includes time spent on additional briefing and any oral argument or hearing and can include ‘fees on fees' for the time expended in filing a motion for attorneys' fees.” D.C. v. Dall. Indep. Sch. Dist., No. 3:17-CV-02981-E, 2020 WL 13429989, at *1 (N.D. Tex. July 23, 2020) (citation omitted). “If a party does not object to particular billing entries as inadequately documented, the court is not obligated sua sponte to sift through fee records searching for vague entries or block billing.” Hoffman v. L & M Arts, No. 3:10–CV–0953–D, 2015 WL 3999171, at *5 (N.D. Tex. July 1, 2015). “It is a common practice for courts to address only those potentially inadequate entries brought to the court's attention.” Id.

Plaintiffs' counsel submitted itemized invoices for the hours spent pursuing the motion, as well as a signed declaration (1) attesting to the accuracy of the billing records, (2) summarizing the experience of both lawyers involved, and (3) opining as to the reasonableness of the time spent and the lawyers' hourly rates. ECF No. 33, at 3–12. Counsel reports 7.85[3] hours for the initial motion and appendix, 8.5 hours for the reply brief, and 3.5 hours for the fee application and corresponding brief. Id. at 5, 8–12. The attorney primarily responsible for the motion has an hourly rate of $425 per hour, and the second attorney (who spent two hours working on the reply brief) charges $350 per hour. Id. In total, Plaintiffs request $8,286.25 for 19.85 hours of work. Id.; ECF No. 32, at 6. Defendant did not file any objections.

The undersigned finds, based on the information and record before the Court, that the requested hourly rates in this case are reasonable and within the market rate for similarly qualified attorneys in this district. See Vanliner Ins. Co. v. DerMargosian, No. 3:12-CV-5074-D, 2014 WL 1632181, at *2 (N.D. Tex. Apr. 24, 2014) (noting that the court is “an expert on the reasonableness of attorneys' fees”). With respect to the time and labor required, the Court finds that the time counsel spent prosecuting the motion to compel was not excessive, duplicative, or inadequately documented. Under the circumstances of this particular discovery matter, the Court finds that spending 16.35 hours on the successful motion to compel to be reasonable and necessary. The briefing covered several points of dispute, including the specific discovery requests, waiver and MicroGen's meritless objections, and Plaintiffs' efforts to resolve the disagreement without court intervention. See ECF Nos. 19, 24, 27. The Court also finds it reasonable that counsel spent 3.5 hours in pursuit of the fee award. Plaintiffs' briefing has been thorough and well-researched and, as noted, MicroGen did not object to Plaintiffs' reported hours. The Court therefore finds that 19.85 hours are those reasonably expended.

The lodestar amount is $8,286.25. The Court has considered the Johnson factors but does not find it necessary to adjust this figure, which is afforded a strong presumption of reasonableness. See, e.g., Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006) (per curiam). Accordingly, the Court accepts the lodestar as the appropriate award under Rule 37(a)(5)(A).

C. MicroGen's counsel is responsible for paying the fee award.

*4 Under Rule 37(a)(5) “the party ... whose conduct necessitated the motion” to compel or the “attorney advising that conduct, or both,” may be required “to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” FED. R. CIV. P. 37(a)(5)(A). Neither MicroGen nor Plaintiffs take a position on whether MicroGen, its attorney, or both should pay the attorney's fees award under Rule 37(a)(5)(A).

Rule 26 of the Federal Rules of Civil Procedure provides as follows:

FED. R. CIV. P. 26(g)(1). Counsel, not the client, is responsible for coordinating the preparation, signing, and serving of written responses to discovery requests. See Simmons v. Tarrant Cnty. 9-1-1 Dist., No. 3:13–cv–1389–M, 2014 WL 2587516, at *5 (N.D. Tex. June 10, 2014) (“When a party is represented by an attorney, it is the attorney's responsibility to sign and serve discovery responses.”); Maggette v. BL Dev. Corp., No. 2:07CV181–M–A, 2009 WL 1767091, at *1 (N.D. Miss. June 18, 2009) (“As to the content and form of the [party's] discovery responses, it is [the party's] counsel's professional responsibility to assist the [party] in answering the discovery requests fully and in accordance with the law ....”). Attorneys “have an obligation, as officers of the court, to assist in the discovery process by making diligent, good-faith responses to legitimate discovery requests.” McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1486 (5th Cir. 1990). On the other hand, “a client can be held responsible for and is bound by her lawyer's actions.” Simmons, 2014 WL 2587516, at *5 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396–97 (1993)); see Merritt, 649 F.2d at 1019 (recognizing “the general rule that a party is bound by the actions of his attorney”).

Plaintiffs moved to compel the production of documents and interrogatory responses only after MicroGen's counsel provided untimely, inadequate discovery responses and refused to resolve the deficiencies. See ECF No. 19, at 4–6; ECF No. 20, at 4–5, 29–40 (emails between counsel). The Court ultimately granted Plaintiffs' motion in full because MicroGen, via its counsel, waived its objections through the untimely responses and, even if not waived, its improper and blanket objections were meaningless and preserved nothing. ECF No. 27, at 8–15. In addition to standing behind meritless objections and incomplete discovery responses, MicroGen's briefing provided no explanation for the failure to timely respond to Plaintiffs' discovery requests and offered insufficient justification for its prolonged non-compliance after the deadline. Id. at 8–11. At most, MicroGen's counsel claimed MicroGen need not comply with discovery deadlines so long as it responded “within a reasonable time frame”—an argument that has no foundation in law. Id. at 9–10. Notably absent from MicroGen's briefing is any suggestion that MicroGen is responsible for or contributed to the discovery violations. See generally ECF Nos. 22, 34.

*5 Based on the record as developed, the Court has no choice but to find that defense counsel is responsible for the conduct that necessitated the motion. Daniel D. Caminiti signed MicroGen's discovery responses, thereby representing that they complied with Rule 26(g)(1). See ECF No. 20, at 6–20; FED. R. CIV. P. 26(g)(1). Mr. Caminiti was also the attorney with whom Plaintiffs' counsel communicated, by phone and email, attempting to resolve the dispute and yet receiving the same objections and responses this Court has subsequently found to be insupportable. See ECF No. 20, at 4–5, 21–23, 29–40. Moreover, according to MicroGen's filings, Mr. Caminiti has been “the primary attorney involved with all pleading and discovery matters, including responding to written discovery[ and] producing documents ....” ECF No. 48-1, at 1; see ECF No. 41, at 1. As a result, the Court will require the fee award to be paid by Mr. Caminiti, in accordance with Rule 37(a)(5)(A).[4]

The Court GRANTS Plaintiffs' Application for Attorney's Fees. ECF No. 32. In accordance with FED. R. CIV. P. 37(a)(5)(A), Mr. Caminiti is required to reimburse Plaintiffs in the amount of $8,286.25 for reasonable attorney's fees. Full payment must be made to Plaintiffs' counsel at Gardner Haas PLLC, 2501 N Harwood Street, Suite 1250, Dallas, Texas 75201, no later than August 16, 2023.

SO ORDERED.