Summary:The court found that Celtig's invoices contained ESI, such as invoices and heavily redacted entries. The court noted that Celtig offered no reason for the redaction of the dollar amount billed, and that Celtig would need to explain the differential for the court to find it reasonable. The court denied in part and granted in part Celtig's motion, and the Patey Defendants were given fourteen (14) days to pay Celtig $1,595.15.
Court:United States District Court, D. Utah, Central Division
Date decided:
Judge:Furse, Evelyn J.
CELTIG, a Tennessee LLC, Plaintiff, v. AARON PATEY, an Individual, EVERGREEN STRATEGIES, a Nevada LLC, PSD INTERNATIONAL, a Utah LLC, RELAY ADVANCED MATERIALS, a Delaware Corporation, Defendants. EVERGREEN STRATEGIES, a Nevada LLC; and RELAY ADVANCED MATERIALS, INC., a Delaware Corporation, Counterclaimants, v. CELTIG, a Tennessee LLC, Counterdefendant. RELAY ADVANCED MATERIALS and EVERGREEN STRATEGIES, Counterclaim and Third-Party Plaintiffs, v. BRENT BENJAMIN WOODSON, PHILLIP COX, MICHAEL GUNDERSON, TIBOR KALNOKI-KIS, BRIAN EDWARDS, DAVID NIELSON, DAVID WAITE, IMPEL SALES, a Utah LLC, and UTAH LAKE LEGACY COALITION, a Utah LLC, Third-Party Defendants Civil No. 2:17-cv-01086-JNP-EJF United States District Court, D. Utah, Central Division Signed July 08, 2019 Counsel Richard D. Burbidge, Abigail M. Dizon-Maughan, Beau R. Burbidge, Salt Lake City UT, for Plaintiff. Michael J. Davidson, Cedar Hills UT, J. Ryan Mitchell, Andrew V. Collins, Mitchell Barlow & Mansfield PC, Justin T. Toth, Maria E. Windham, Ray Quinney & Nebeker, Salt Lake City UT, for Defendants. Furse, Evelyn J., United States Magistrate Judge ORDER DENYING IN PART AND GRANTING IN PART CELTIG, LLC'S FIFTH SHORT FORM DISCOVERY MOTION RE: ATTORNEYS’ FEES PURSUANT TO THE COURT'S ORDERS DATED DECEMBER 7, 2018 AND DECEMBER 10, 2018 AND FEDERAL RULE 37(a)(5)(A) (ECF No. 111) *1 Plaintiff Celtig, LLC moves the Court[1] for its costs and attorneys’ fees pursuant to this Court's December 7, 2018 and December 10, 2018 Orders and Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure. (Celtig, LLC's 5th Short Form Discovery Mot. Re: Attorneys’ Fees Pursuant to the Court's Orders Dated Dec. 7, 2018 & Dec. 10, 2018 & Fed. R. 37(a)(5)(A) (“Mot.”), ECF No. 111.) On December 7, 2018, the Court granted Celtig's Short-Form Discovery Motions to Compel Defendants Aaron A. Patey, Evergreen Solutions, LLC, Relay Advanced Materials, Inc., and PSD International LLC (collectively “the Patey Defendants”) to provide complete responses to Celtig's First Set of Discovery Requests (Order Granting Short Form Discovery Mot. Re: Defs.’ Inadequate Responses to Pl.’s 1st Set of Discovery Requests (“Order 1”), ECF No. 106) and Celtig's Second Set of Discovery Requests (Order Granting Short Form Discovery Mot. Re: Defs.’ Inadequate Responses to Pl.’s 2d Set of Discovery Requests (“Order 2”), ECF No. 107). The Court awarded Celtig its reasonable expenses incurred in bringing those Motions because Celtig prevailed and complied with the “meet and confer” requirement. (Order 1 at 4, ECF No. 106; Order 2 at 3, ECF No. 107.) Further, the Patey Defendants lacked substantial justification for their position, and circumstances did not make an award of expenses unjust. On December 10, 2018, the Court granted Celtig's Third Short Form Discovery Motion Re: Defendants’ Failure to Appear for Properly Noticed Depositions. (Order Granting 3d Short Form Discovery Mot. Re: Defs.’ Failure to Appear for Properly Noticed Depositions (“Order 3”), ECF No. 109.) The Court awarded Celtig its reasonable expenses and attorneys’ fees incurred in bringing the Motion and for preparing for and appearing at the properly noticed depositions for which the Patey Defendants failed to appear. (Id. at 2.) Similarly, the Court awarded fees because Celtig prevailed after attempting to meet and confer, and the Patey Defendants lacked substantial justification for their position, and circumstances did not make an award of expenses unjust. The Court instructed the parties to attempt to reach an agreement as to the amount of Celtig's costs and fees but indicated if they could not reach an agreement, then Celtig should file a motion detailing its costs and fees. (Id.) In its present Motion, Celtig indicates that the parties did not conduct a meet and confer to discuss the amount of its costs and fees because of an inability to agree on a schedule. (Mot. 4, ECF No. 111.) The Court finds Celtig's failure to meet and confer unreasonable. Celtig provided its fees to the Patey Defendants on December 19, 2018 and demanded to confer by the following day. (Id.) The following day, the Patey Defendants indicated they could not meet and confer until December 27, 2018. (Id.) An immediate response requesting a week's delay around the winter holiday season is reasonable, and Celtig should have accommodated the request. *2 On December 21, 2018, Celtig filed the present Motion asking the Court to award it $6,182.00 in attorneys’ fees in connection with bringing its First and Second Short Form Motions Re: Defendants’ Inadequate Responses to Plaintiff's First and Second Set of Discovery Requests (ECF Nos. 88 & 89) and $10,413.15—$8,818.00 in fees and $1,595.15 in costs—in connection with bringing its Third Short Form Motion Re: Defendants’ Failure to Appear for Properly Noticed Depositions (ECF No. 97). (Mot. 3-4, ECF No. 111.) Thus, in total, Celtig seeks $16,595.15 in costs and fees. (Mot. 4, ECF No. 111.) The Patey Defendants challenge the reasonableness of the fees Celtig requests and the way in which Celtig seeks to demonstrate its entitlement to its requested fees. (Opp'ns to Mot. Reflected on Docket 111 (“Opp'n”) 2, ECF No. 116.) The Patey Defendants specifically object to Celtig's submission of redacted invoices from which Celtig redacted the amount sought for particular entries and/or redacted the descriptions of the work performed. (Id. at 2–3.) The Patey Defendants identify specific examples of line items evidencing overly redacted entries lacking sufficient detail. (See App. A to the Opp'n to Mot. Reflected on Docket 111 (“App. A”) 2–5, ECF No. 116–1.) After considering the Motion, the Patey Defendants’ Memorandum in Opposition to the Motion and supporting Appendix, the Declaration of Richard D. Burbidge (ECF No. 112), the applicable law, and for the reasons addressed in detail below, the Court DENIES the Motion in part because the invoices, as presented, do not enable the Court to determine the reasonableness of the fees requested. The Court invites Celtig to begin this process again with a meet and confer, addressing the issues raised by the Patey Defendants and the Court. If the parties cannot agree on an amount, Celtig may again move the Court for a determination of the appropriate amount of fees. The Court GRANTS the Motion in part for the amount paid to Advanced Court Reporting, $1,595.15, because the Court finds that amount reasonable and not disputed. DISCUSSION Federal Rule of Civil Procedure 37(a)(5)(A) requires a court to award the party prevailing on a motion to compel discovery its “reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). Courts award Rule 37 sanctions to “deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists.” Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 673, 680 (10th Cir. 2012) (quoting Advisory Committee note to 1970 amendment to Fed. R. Civ. P. 37(a)(4)). The district court has discretion under Rule 37 to determine the amount of a fee award. Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1228 (10th Cir. 2015). In making its determination about what amount of attorney's fees qualifies as reasonable, this Court looks to the process followed when awarding attorney's fees when a plaintiff prevails in a 42 U.S.C. § 1983 matter. See accord, Centennial, 688 F.3d 678-680 (looking to 42 U.S.C. § 1988, among other statutes, in determining whether a party must necessarily “incur” a fee to receive a fee award). In such cases the court arrives at a “lodestar” figure by multiplying the hours counsel reasonably spent on the motion by a reasonable hourly rate. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1233 (10th Cir. 2000). “ ‘[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.’ ” Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir. 1998) (quoting Mares v. Credit Bureau, 801 F.2d 1197, 1201 (10th Cir. 1986)). 1. The Invoices’ Deficiencies Do Not Allow the Court to Determine the Reasonableness of the Fees Sought *3 The party seeking fees must submit to the court “ ‘meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.’ ” United Phosphorus, Ltd., 205 F.3d at 1233 (quoting Case, 157 F.3d at 1250). “ ‘The prevailing party must make a ‘good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.’ ” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (quoting Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir. 1995)). The parties may submit affidavits or declarations regarding the reasonableness of the hours billed; however, “[m]ore important is the discretionary determination by the district court of how many hours, in its experience, should have been expended on the specific case, given the maneuverings of each side and the complexity of the facts, law, and litigation.” Case, 157 F.3d at 1250. A court may reduce the reasonable hours awarded if the court finds the hours are “ ‘unnecessary, irrelevant and duplicative.’ ” Id. (quoting Carter v. Sedgwick Cty., 36 F.3d 952, 956 (10th Cir. 1994)). In his Declaration, Mr. Burbidge states that he, Carolyn LeDuc, Abigail Dizon-Maughan, and an unnamed former associate—all attorneys from the law firm of Burbidge Mitchell—spent 17.75 hours drafting and sending e-mails to counsel for the Patey Defendants, “participating in a meet and confer, drafting the First and Second Short Form Motions, and preparing for and arguing the issues at a hearing before this Court.” (Decl. of Richard D. Burbidge in Supp. of App. for Att'ys Fees Pursuant to the Court's Orders Dated Dec. 7, 2018 & Dec. 10, 2018 & Fed. R. 37(a)(5)(A) (“Burbidge Decl.”) ¶ 8, ECF No. 112.) In his Declaration with respect to the Third Short Form Motion, Mr. Burbidge states that the same four attorneys spent 27.85 hours (1) “preparing for and conducting each noticed deposition”; (2) “drafting and sending correspondence to counsel for Defendants regarding the depositions and attempting to meet and confer on the issue”; (3) “drafting the Third Short Form Motion”; and (4) “preparing for and arguing at the hearing regarding Defendants’ and Davidson's failure to appear for depositions.” (Burbidge Decl. ¶ 10, ECF No. 112.) Mr. Burbidge also indicates that his firm expended a total of $1,595.15 in connection with the Third Short Form Motion for “certified court reporters retained to take each deposition.” (Burbidge Decl. ¶ 12, ECF No. 112.) In total, Celtig seeks $16,595.15 in costs and attorneys’ fees. (Id. at ¶ 15; Mot. 4, ECF No. 111.) Mr. Burbidge supports his Declaration with heavily redacted invoices. (Invoices, Ex. A, ECF No. 112–1.) After reviewing Mr. Burbidge's Declaration and the invoices he submits in support of Celtig's claim for attorneys’ fees, the Court finds it cannot follow the amount of fees Celtig requests and thus cannot determine the reasonableness of the attorneys’ fees sought for the following reasons. First, the invoices intermittently include the total amount billed for a task the attorney performed. Sometimes that amount when compared with the time billed matches the billable rate set forth in Mr. Burbidge's Declaration and sometimes it does not. (C.f., Invoices, Ex. A, ECF No. 112–1 at 11, 26 with 28, 30.) Most of the time Celtig redacts the dollar amount billed, but Celtig apparently recorded and has that amount available. Celtig offers no reason for the redaction of that amount. Second, Mr. Burbidge does not identify his former associate or provide his or her years of experience or explain how an associate could bill at a significantly higher rate than a partner at the firm. (See Burbidge Decl. ¶ 7, ECF No. 112 (stating that “Former Associate” bills out at $415 per hour while partner Carolyn LeDuc bills out at $375 per hour). To the extent that the billing differential is accurate, Celtig would need to explain the differential for the Court to find it reasonable. *4 Third, many entries include work performed for which the Court will not pay fees. This Court will not pay fees for preparation of deposition notices or deposition outline preparation. Celtig would need to prepare deposition notices and outlines in any event, and Celtig will benefit from the work put into them when it takes the depositions. Additionally, the invoices include billing for the Fourth Discovery Motion and a statement of discovery issues from February 15, 2018, neither of which the Court included in its December 7 and 10, 2018 Orders. (Invoices, Ex. A, ECF No. 112–1 at 2, 4–5 & 10-11, 15, 28.) Fourth, Celtig appears to request the full amount of fees for entries where it redacts a portion of the description of work performed without taking any apparent reduction in the amount of time billed for the redacted work. For example, the entry dated August 31, 2018 reads “Finalize correspondence to Davidson re Ds’ responses to discovery requests,” and redacts the remainder of the entry, yet apparently seeks the full amount for the time billed in that entry; the entries dated February 13, 15, July 23, 24, August 1, 30, September 21, October 18, 22, 23, and 25, Nov. 1, 2, 5, 8, 19, 20, 26, 27, 28, 30, December 4, 9, and 10, 2018 all suffer from the same deficiency. (Id. at 4-5, 10, 13, 16, 19, 22, 25-28, 30.) Without either seeing the full entry or a corresponding reduction in the fee and an explanation for that reduction, the Court cannot determine what fee Celtig incurred let alone the reasonableness of that fee. Finally, the invoices contain other irregularities. For example, even though attorneys generally bill in tenths of an hour, Ms. Dizon-Maughan billed 0.08 hours for a number of tasks on November 28, 2018. (Id. at 28.) Billing 0.08 hours (4.8 minutes) is unusual, particularly given that the entry reflects that Ms. Dizon-Maughan modified and finalized motions, modified a hearing outline, reviewed final drafts of motions, and performed other work redacted from that entry within that brief timeframe. Additionally, while Ms. Dizon-Maughan generally appears to bill in tenths of an hour, she occasionally bills in other increments. (Id. at 26, 27.) Simply put, Celtig's invoices contain improper redactions, deficiencies, and apparent errors. While courts may estimate fees in the absence of good record keeping, this Court declines to do so here, where adequate records appear to exist. For these reasons the Court cannot determine the reasonableness of the attorneys’ fees sought. Accordingly, the Court DENIES in part Celtig's Motion. The Court GRANTS Celtig's request for the amount of money paid to Advanced Court Reporting, $1,595.15, because the Court finds that amount reasonable and not disputed. CONCLUSION For the reasons discussed above, the Court DENIES in part and GRANTS in part Celtig's Motion. The Patey Defendants have fourteen (14) days to pay Celtig $1,595.15. Celtig may file a renewed Motion for Attorneys’ Fees if it corrects the deficiencies and errors identified. DATED this 8th day of July, 2019. Footnotes [1] On October 4, 2017, the District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A). (ECF No. 9.)