Barker v. GR Inv. Grp. LLC
Barker v. GR Inv. Grp. LLC
2024 WL 5381499 (D.N.M. 2024)
July 10, 2024
Martinez, Damian L., United States Magistrate Judge
Summary
The court granted the plaintiff's motion to compel discovery and awarded attorney's fees using the "lodestar" method. The court found that 29.1 hours of work at a rate of $300 per hour was reasonable, but reduced the fee request for duplicative time and time spent on preparing the application. The court also clarified that this ruling only applied to this specific case and did not establish the prevailing rate for attorney's fees in TCPA matters in the district.
LAURENCE BARKER, Plaintiff,
v.
GR INVESTMENT GROUP LLC, GUSTAV RENNY aka GUSTAV ZURAK, and JANE DOES, 1–5. Defendants
v.
GR INVESTMENT GROUP LLC, GUSTAV RENNY aka GUSTAV ZURAK, and JANE DOES, 1–5. Defendants
No. 1:23-cv-0332 SCY/DLM
United States District Court, D. New Mexico
Filed July 10, 2024
Martinez, Damian L., United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
*1 THIS MATTER is before the Court on Plaintiff Laurence Barker's Application for Attorney Fees and Costs. (Doc. 63.) Having considered the briefing of the parties and the relevant law, the Court will award $9,444.77 in attorney's fees to Plaintiff Barker against Defendants GR Investment LLC and Gustav Renny.
I. Background
Plaintiff Barker filed his First Motion to Compel Discovery on March 6, 2024. (Doc. 46.) The motion sought to compel Defendant Renny to produce items responsive to Barker's Requests for Production No. 2, 9, 10, and 14 as well as Interrogatories No. 2 and 3. (Id.) The motion further sought to compel Defendant GR Investment Group LLC (GR) to produce items responsive to Requests for Production No. 2, 7, and 4. On the same day the Court denied without prejudice Barkers first motion for failing to comply with D.N.M. LR-Civ. 10.2, 10.5, and 10.6. (Doc. 47.) The Order denying Barker's First Motion to Compel allowed Barker to refile a motion complying with local rules by March 13, 2024. (Id.)
On March 12, 2024, Barker filed his Amended First Motion to Compel Discovery, again Barker sought responses from Defendants Renny and GR to the same interrogatories and requests for production referenced in the Barkers original motion. (Doc. 48.) Renny and GR filed their response to Barker's Amended First Motion on April 5, 2024 (Doc. 56), and Barker filed his reply on April 12, 2024 (Doc. 58). The Court held a hearing on April 29, 2024, concerning Barker's motion (Doc. 60) and entered an Order granting Barker's motion to compel (Doc. 61). In ruling from the bench, the Court found that Renny's and GR's objections were not substantially justified and pursuant to Rule 37(a)(5)(A)(ii) of the Federal Rules of Civil Procedure awarded Barker his attorney's fees, giving him until May 14, 2024, to file his application for attorney fees. (Id.)
Barker filed his Application for Fees and Costs on May 7, 2024, requesting $10,952.00[1] in attorney fees, $450.00 in reasonable expenses, and $933.00 in gross receipts tax. (Doc. 63 at 5.) In their response Renny and GR make four arguments: (1) Barker's fee request should be reduced by 10.5 hours, which relates to his original motion to compel that was denied without prejudice for failure to comply with local rules; (2) Barker should not be awarded the $450.00 of requested expenses; (3) Barker should not be awarded fees related to preparing the application for attorney's fees; and (4) Counsel for Barker's hourly rate should be at most $275.00. (Doc. 65 at 2–4.) Barker's reply asserts that all the fees requested should be awarded and that the prevailing hourly rate for this type of work is $325.00. (Doc. 66 at 1–4.)
II. Analysis
“To determine a reasonable attorneys[’] fee, the district court must arrive at a ‘lodestar’ figure by multiplying the hours plaintiffs’ counsel reasonably spent on the litigation by a reasonable hourly rate.” Case v. Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1249 (10th Cir. 1998) (quoting Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995)); see also City of Las Cruces v. Lofts at Alameda, LLC, No. CV 17-809 JCH/GBW, 2022 WL 2753994, at *2 (D.N.M. July 14, 2022). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Case, 157 F.3d at 1249 (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986)). “The prevailing party must make a good-faith effort to exclude from a fee request hour that are excessive, redundant, or otherwise unnecessary.” Jane L., 61 F.3d at 1510 (internal quotation marks and citation omitted). Additionally, “[h]ourly rates must reflect the prevailing market rates in the relevant community.” Id. (internal quotation marks and citation omitted). “Finally, certain factors may cause the court to adjust a fee upward or downward, ‘including the important factor of the results obtained.’ ” Tenorio v. San Miguel Cnty. Det. Ctr., No. 1:15-CV-00349-LF-JHR, 2019 WL 2617998, at *2 (D.N.M. June 26, 2019) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quotation marks omitted)).
A. Reasonable Hours
*2 Rather than providing meticulous, contemporaneous time records Barker's Application for Attorney Fees attaches a declaration by counsel Sid Childress indicating that over 15 days he spent a total of 33.7 hours on the Motion, preparing for and attending the hearing on the motion and filing the application for attorney fees.[2] (Doc. 63-1 at 4–5.) Renny and GR argue that the 10.5 hours spent crafting the original motion to compel (Doc. 46), which this court denied without prejudice, should not be recoverable and is tantamount to a double award (Doc. 65 at 2). In reply, Barker suggests that the time spent on the original motion to compel “became [the time spent writing] a draft of the final motion filed ....” (Doc. 66 at 1.) Barker further argues that without having prepared the original motion to compel, it would have taken “far more time to prepare Doc. 48 (Amended Motion to Compel) than the 3.2 hours incurred.” (Id.)
The Court does not agree with the position taken by Renny and GR that the fee request should be reduces by 10.5 hours. Nor does the Court agree with the position taken by Barker that he should receive his fees related to the Original Motion to Compel (Doc. 46) and the Amended Motion to Compel (Doc. 48). Barker's Original Motion to Compel was denied because counsel failed to follow the Local Rules of Civil Procedure. This failure to follow the Local Rules required counsel to then spend an additional 3.2 hours to bring his brief into compliance. Indeed, in comparing the Original Motion with the Amended Motion, the only difference relates to adding information concerning amended disclosures from the Defendants, renumbering of exhibits, and making a change to footnote number 2. The bulk of the Amended Motion is essentially the same as the Original Motion. (compare Doc.46 at 1–13, with Doc. 48 at 1–4). Accordingly, the Court finds that the 3.2 hours related to drafting the Amended Motion to Compel (Doc. 48) should be reduced as duplicative or unnecessary. See City of Las Cruces, 2022 WL 2753994, at *6 (discussing factors analyzed to determine reasonableness and noting that hours may be reduced to account for any that are “unnecessary, irrelevant and duplicative”) (quoting Carter v. Sedgwick Cnty., 36 F.3d 952, 956 (10th Cir. 1994)).
Renny and GR also assert that Barker should not be awarded fees related to preparing his Application for Fees and Costs. (Doc. 65 at 3.) Renny and GR argue, without citing to any authority, that the 5.4 hours Barker expended on the Application for Fees should be reduced from the fee calculation because “[t]here is no authorization, or award, for fees related to the preparation of the Application.” Id. And in his Reply, Barker insists that the hours related to preparing the Application for Fees are proper because “[Barker's Counsel] tried to settle the issues of fees and costs so that briefing to the Court would not be necessary, but these Defendant's and their attorney(s) don't seem capable of resolving any issue without court-intervention.” (Doc. 66 at 3.)
The Parties have failed to cite any authority allowing an award of attorneys’ fees related to preparing an application for fees. Nevertheless, an award of reasonable attorneys’ fees may include the time spent preparing a fee application. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1205 (10th Cir. 1986). Barker's itemization of fees block bills 1.4 hours on April 30, 2024. (Doc. 63-1 at 5.) Consequently, the Court is unable to determine how much time can be credited for preparing the Application for Fees and what appears to be multiple emails between counsel. Thus, the Court finds that the is unable to determine if those fees are reasonable and will further reduce the fee request by the 1.4 hours entered on April 30, 2024.
*3 Based on the above deductions the Court finds that 29.1 hours of Plaintiff's Counsel's requested time is reasonable and shall be awarded.
B. Requested Expenses
Barker's Application also requests his expert witness fee in the amount of $450.00 relating to retaining Hansen Technologies, Inc. (Doc 63 at 5 and 63-1 at 5 and 7.) In support of this request Barker cites Federal Rule of Civil Procedure 37(a)(5)(A) which allows for the award of reasonable expenses. (Docs. 63 at 5; 55 at 3.) In response Renny and GR argue that there was no reason for Barker to retain an expert.
Although Rule 37(a)(5)(A) permits an award of expenses, nowhere in that rule does not define what is considered an expense. Because the $450.00 is clearly an expert witness fee the Court will analyze this expense request under 28 U.S.C. § 1920 and D.N.M.LR-Civ. 54.2. Section 1920 allows the Court to tax as costs experts who are “court appointed.” 28 U.S.C. § 1920(6). Under this Court's Local Rules “[a]n expert witness fee is not taxable [ ] unless the Court, sua sponte or on motion by a party, appoints the expert and approves the fee amount.” D.N.M.LR-Civ. 54(c)(2). Hansen Technologies, Inc. was not appointed by the Court, consequently the Court will not approve an award of Barker's expert witness fees.
C. Reasonable Hourly Rates
Barker's Counsel request an hourly rate of $325 per hour plus gross receipts tax of 8.18% which is the rate for Santa Fe, New Mexico[3]. (Docs. 63 at 5.) The requested rate is based on counsel's over 30-years’ experience and an assertion that the prevailing rate in this District for Telephone Consumer Protection Act (TCPA) cases is that amount. (Docs. 63 at 5; 66 at 45.) Barker further claims that he has previously been awarded fees at a rate of $300 per hour and asserts that this Court has set the prevailing market rate for a TCPA case at $325 per hour. (Doc. 66 at 3–6.) Renny and GR argue that a reasonable rate for Barker's counsel is $275 per hour, which is based on an average of what Barker's Counsel charges clients who pay him by the hour and not on a contingency fee arrangement. (Doc. 65 at 3–4.).
The Court disagrees with Barker's position that $325 per hour is the prevailing rate in the area. Barker cites a Proposed Findings and Recommended Disposition in Escano v. Innovated Financial Partners, LLC, No. 2:23-CV-00227-MLG-GJF, 2024 WL 243558 (D.N.M. January 23, 2024) authored by United States Magistrate Judge Gregory J. Fouratt to support his position. Although that case was also brought under the TCPA, the fee rate Judge Fouratt arrived at was based on contractual law and not the TCPA. See Escano, 2024 WL 24355 at *16-17. Indeed, Judge Fouratt's analysis concerning the hourly rate requested was limited to “whether the fees requested [were] ‘inequitable and unreasonable.’ ” Id. at *13 (quoting United States ex. Rel. C.J.S., Inc. v. W. States Mech. Contractors, Inc., 843 F.2d 1533, 1549 (10th Cir. 1987)). Based on that analysis the Court reduced the attorneys’ hourly rates to the prevailing commercial litigation rate in the area and did not establish a prevailing rate for a TCPA award. Id at *17. Defendants’ stance that a reasonable rate for Barker's counsel should be the average of his general hourly rates is similarly flimsy. Defendants’ have not cited any case or pointed to any authority that would support their position. See D.N.M.LR-Civ. 7.3(a) (“A motion, response, or reply must cite authority in support of the legal positions advanced.”)
*4 The Court's research has not revealed any authority setting an established or agreed upon rate for discovery disputes in TCPA cases within this District. However, as noted in Barker's Reply, his counsel was previously awarded $300/hour, almost three years ago, in TCPA cases. (Doc. 66 at 4.) Barker has not provided any reasoning explaining why that rate would not be reasonable for a discovery dispute in this matter. Thus, the Court finds that a reasonable hourly rate for a discovery dispute in this matter is $300 per hour. The Court emphasizes that this ruling relates only to a fee award for a discovery dispute in this case and should not be taken as the Court establishing this District's prevailing rate for attorneys’ fees in TCPA matters.
IT IS THEREFORE ORDERED that the Plaintiff's Application for Attorney Fees and Costs (Doc. 63), is GRANTED in Part and Denied in part as follows:
1. Defendants GR Investment Group LLC and Gustav Renny shall pay Barker for 29.1 hours of work at a rate of $300 per hour which amounts to $8,730.00, plus gross receipts tax of 8.1875% or $714.77, for a total of $9,444.77. Such payment shall be due no later than July 24, 2024.
2. The Court Denies Barker's request of $450.00 related to expert fees.
IT IS SO ORDERED.
Footnotes
The attorney's fees request is based on an hourly rate of $325.00 for 33.7 hours of work related to the motion to compel and application for attorney's fees. (Doc. 63-1 at 4-5.)
The Court notes that Mr. Childress has not accounted for time related to reviewing and replying to Renny and GR's response on opposition to the application for attorney fees.