YVONNE SANCHEZ, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant Civil No. SA-20-cv-00551-OLG United States District Court, W.D. Texas, San Antonio Division Filed December 09, 2020 Garcia, Orlando L., United States District Judge ORDER *1 On this day, the Court considered the Motion to Compel Discovery Responses, Initial Disclosures, and Production of Documents (see docket no. 10) (the “Motion to Compel” or “Motion”) filed by Defendant Wells Fargo Bank, N.A., Trustee for the Pooling and Servicing Agreement Dated as of April 1, 2005 Park Place Securities, Inc. Asset-Backed Pass-Through Certificates Series 2005-WHQ2 (“Defendant”). After reviewing Defendant's Motion to Compel and the record in this case, the Court finds that Defendant's Motion should be granted. BACKGROUND AND DISCUSSION On April 17, 2020, Plaintiff Yvonne Sanchez (“Plaintiff”) filed the instant lawsuit in state court alleging that the Defendant's foreclosure sale of the real property commonly known as 12030 Sunburst Lane, San Antonio, Texas 78230 was wrongful because the statute of limitations to foreclose has expired. See generally docket no. 1-2. Plaintiff's complaint also alleges statutory fraud and requests a declaration that the foreclosure sale is invalid because Defendant's right to foreclose has expired. See id. The lawsuit was removed to this Court on May 5, 2020. See docket no. 1. The record indicates that Plaintiff has not served her Rule 26 initial disclosures in this action, as required by Fed. R. Civ. P. 26(a)(1). In addition, the record demonstrates that Defendant served written discovery on Plaintiff on September 15, 2020, including interrogatories, requests for production, and requests for admission. See docket nos. 10-1 & 10-2. Plaintiff's responses to Defendant's first set of written discovery requests were due on October 15, 2020, however, Plaintiff failed to serve any responses by that date. In the period since that date, the record further indicates that Defendant's counsel has followed up with Plaintiff's counsel on numerous occasions regarding Defendant's discovery requests and has made repeated attempts to obtain the requisite discovery without Court intervention. See docket nos. 10-1, 10-3, 10-4, & 10-5. Yet, as of the date of the Motion, Plaintiff's counsel had not responded to Defendant's counsel's repeated communications regarding discovery, nor had Plaintiff responded to Defendant's discovery requests. See docket no. 10-1. Thus, on November 19, 2020, Defendant filed the instant Motion to Compel seeking an order directing Plaintiff to comply with her discovery obligations. See docket no. 10. As of the date of this Order, Plaintiff has not responded to Defendant's Motion to Compel. Pursuant to Local Rule CV-7(e), any response to a non-dispositive motion must be filed “not later than 7 days after the filing of the motion.” The rule further provides that “[i]f there is no response filed within the time period prescribed by this rule, the court may grant the motion as unopposed.” Id. Here, Defendant's Motion was filed on November 19, 2020, and notice and service of the Motion were provided to Plaintiff via the Court's CM/ECF system at that time. See docket no. 10 p. 6; Local Rule CV-5(b). Thus, pursuant to this Court's rules, Plaintiff's response to Defendant's Motion was due no later than November 30, 2020.[1] Plaintiff did not respond by its deadline, nor has Plaintiff responded in the period that has passed since the deadline. Accordingly, the Court concludes that there is no opposition to the relief sought by way of the Motion. See Princeton Digital Image Corp. v. Dell, Inc., No. 1-15-MC-100 RP, 2015 WL 12746118, at *1 (W.D. Tex. Mar. 16, 2015). Thus, Defendant's Motion will be granted as unopposed. *2 Accordingly, the Court will grant the Motion to Compel and order Plaintiff to comply with her discovery obligations, including by serving her initial disclosures and by responding to Defendant's discovery requests within fourteen (14) days. In the event Plaintiff fails to comply with her discovery obligations in the provided timeframe, Plaintiff's claims will be subject to dismissal without prejudice. See Fed. R. Civ. P. 41(b) & Fed. R. Civ. P. 37(b)(2)(A)(v). Additionally, because Defendant's Motion to Compel has merit and has been granted, Defendant is likely entitled to its “reasonable expenses incurred in making the motion, including attorney's fees,” pursuant to Fed. R. Civ. P. 37(a)(5)(A).[2] In the Fifth Circuit, courts use the “loadstar” method to determine the fees to be awarded, which is applied by multiplying “the number of hours reasonably expended by an appropriate hourly rate in the community for the work at issue.” Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490-91 (5th Cir. 2012). “[T]he lodestar is presumptively reasonable and should be adjusted upward or downward only in exceptional circumstances, and only if an analysis of the twelve factors set forth in Johnson ... so warrants.” Leonard v. Louisiana, No. 07-813, 2013 WL 3558291, *2 (W.D. La. July 10, 2013) (citing Johnson v. Ga. Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974)).[3] In this case, Defendant requests an award of $750.00 in attorney's fees. See docket no. 10 p. 5. Defendant's counsel—Jennifer McCammon—submitted an affidavit explaining that this amount was calculated by multiplying her hourly rate of $290/hour by the “approximately two- and-a-half hours” that she had spent (as of the date of the Motion to Compel) following up on Defendant's discovery requests and preparing the Motion. See docket no. 10-1. In addition to the time spent drafting the Motion to Compel, the record demonstrates that Ms. McCammon made numerous attempts to confer with Plaintiff's counsel, including by email, telephone, and letter. See docket no. 10-1, 10-3, 10-4, 10-5. The Court finds that Ms. McCammon's hourly rate is reasonable for an attorney with her experience for this type of work in the San Antonio area, and having reviewed the Motion and the attached materials, the Court also finds that 2.5 hours is a reasonable amount of time to be spent on the Motion to Compel and the communications detailed in the exhibits. However, because Ms. McCammon's affidavit provides only that counsel spent “approximately two-and-a-half hours” related to the Motion without specifically stating the exact amount of time expended and/or billed, the Court will conservatively award fees for only 2 hours of work. Thus, the Court concludes that it appropriate to award $580.00 to Defendant under Fed. R. Civ. P. 37(a)(5)(A), the total calculated by multiplying Ms. McCammon's hourly rate ($290/hour) by 2 hours.[4] *3 Finally, expenses that are awarded under Fed. R. Civ. P. 37(a)(5)(A) may be awarded against the party who has failed to comply with its discovery obligations and/or the party's counsel, if it was the party's counsel that was responsible for the conduct that necessitated the motion to compel. See id.; Infanzon v. Allstate Ins. Co., 335 F.R.D. 305 (C.D. Cal. 2020) (awarding expenses against plaintiff's counsel under Fed. R. Civ. P. 37(a)); Devaney v. Continental Am. Ins. Co., 989 F.2d 1154 (11th Cir. 1993) (affirming district court's award of expenses against defendant's counsel under Fed. R. Civ. P. 37(a)). In this case, a review of the record indicates that the instant Motion to Compel was necessitated by Plaintiff's counsel's repeated failure to even acknowledge or otherwise respond to the various discovery-related communications by Defendant's counsel. See docket nos. 10-1, 10-3, 10-4 & 10-5. Even a single response to Defendant's counsel—that perhaps explained why Plaintiff had not yet responded to Defendant's discovery requests and/or explained how Plaintiff intended to comply with her discovery obligations—may have made the instant Motion unnecessary and/or limited its scope. For that reason, the Court finds that it is likely appropriate to order that Plaintiff's counsel—rather than Plaintiff—be responsible for paying the amount awarded to Defendant under Fed. R. Civ. P. 37(a)(5)(A). Additionally, because it appears that it was counsel's conduct that was primarily responsible for necessitating the instant Motion to Compel,[5] the Court believes it is likely appropriate to order that Plaintiff's counsel not seek reimbursement of this amount from their client. See Chilcutt v. United States, 4 F.3d 1313, 1326 (5th Cir. 1993) (“There is no question but that a court can forbid a private attorney from seeking reimbursement from clients or employers under Rule 37.”). However, before the Court formally orders Plaintiff's counsel to reimburse Defendant for the $580.00 in expenses that Defendant incurred related to the Motion to Compel, the Court believes it is appropriate to provide Plaintiff's counsel an “opportunity to be heard” specifically as to the issue of the award of expenses. See Fed. R. Civ. P. 37(a)(5)(A). Thus, Plaintiff's counsel of record—Gregory T. Van Cleave and Elizabeth Russell—will be provided with seven (7) days to file a response specifically explaining why they should not be held jointly and severally liable to Defendant for the $580.00 in expenses that Defendant incurred related to the Motion to Compel under Fed. R. Civ. P. 37(a)(5)(A). In the event Plaintiff's counsel fail to make the showing required under either Fed. R. Civ. P. 37(a)(5)(A)(ii) and/or 37(a)(5)(A)(iii), the Court will order that Plaintiff's counsel be jointly and severally liable to Defendant for the $580.00 in expenses under Fed. R. Civ. P. 37(a)(5)(A). CONCLUSION AND ORDER For the reasons set forth above, Defendant's Motion to Compel (docket no. 10) is GRANTED. IT IS THEREFORE ORDERED that—within fourteen (14) days of the date of this Order—Plaintiff Yvonne Sanchez shall (i) serve her Rule 26 Initial Disclosures and (ii) meaningfully respond to Defendant's Interrogatories and Requests for Production of Documents. IT IS FURTHER ORDERED that, in the event that Plaintiff fails to comply with the above orders, Plaintiff's claims will be subject to dismissal without prejudice for failure to prosecute and failure to comply with a court order. See Fed. R. Civ. P. 41(b) & Fed. R. Civ. P. 37(b)(2)(A)(v). Defendant may notify the Court in the event Plaintiff fails to serve the discovery materials described in the prior paragraph in the time period provided. IT IS FINALLY ORDERED that—within seven (7) days of the date of this Order—Plaintiff's counsel of record (Gregory T. Van Cleave and Elizabeth Russell) shall file a response explaining why they should not be held jointly and severally liable to Defendant for the $580.00 in expenses that Defendant incurred related to the Motion to Compel under Fed. R. Civ. P. 37(a)(5)(A). In the event Plaintiff's counsel of record fail to respond in the timeline provided and/or fail to demonstrate why an award of expenses would be inappropriate under either Fed. R. Civ. P. 37(a)(5)(A)(ii) and/or 37(a)(5)(A)(iii), the Court will order that Plaintiff's counsel be jointly and severally liable to Defendant for $580.00 in expenses under Fed. R. Civ. P. 37(a)(5)(A). *4 SIGNED this 9th day of December, 2020. Footnotes [1] November 26, 2020 was Thanksgiving Day, a “legal holiday” under Fed. R. Civ. P. 6(a)(6), and this Court's September 9, 2020 General Order closed the United States District Clerk's Office on November 27, 2020. November 28, 2020 and November 29, 2020 were a Saturday and Sunday, respectively. [2] Fed. R. Civ. P. 37(a)(5)(A) provides narrow exceptions under which a Court may choose not to award expenses, but none of those exceptions appear to be applicable in this case. Specifically, Defendant did make good-faith efforts to confer with Plaintiff as to the open discovery issues, Plaintiff has not explained why her non-compliance with her discovery obligations is “substantially justified,” and neither Plaintiff nor Plaintiff's counsel has explained why the award of such amounts would otherwise be “unjust.” However, as discussed below, before an award of expenses is formally issued, Plaintiff's counsel will be afforded one final opportunity to explain why Defendant's expenses related to the Motion to Compel should not be awarded. [3] The twelve Johnson factors are: (1) the time and labor required for litigation; (2) the novelty and complexity of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorneys had to refuse other work to litigate the case; (5) the attorneys' customary fee; (6) whether the fee was fixed or contingent; (7) whether the client or case circumstances imposed any time constraints; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case was ‘undesirable;’ (11) the type of attorney-client relationship and whether the relationship was longstanding; and (12) awards made in similar cases. Johnson, 488 F.2d at 717-19. [4] The Court finds that this lodestar amount is reasonable, and none of the Johnson factors warrant adjusting the total either upward or downward. The Court notes that Defendant's original request for $750.00 in Defendant's Motion was premised on Defendant's presumption that Ms. McCammon would also need to draft a reply brief following Plaintiff's response to Defendant's Motion and/or appear at a hearing on the Motion to Compel. See docket no. 10-1 pp. 2-3. However, Plaintiff never responded to Defendant's Motion, and thus, neither the expenses associated with a reply brief nor a hearing were incurred. Accordingly, the Court concludes that an award of $580.00 is more appropriate than the $750.00 requested in Defendant's Motion. [5] Although there is no evidence regarding Plaintiff's own conduct in the record, the Court understands that it is of course possible that Plaintiff herself may not have fully assisted Plaintiff's counsel with respect to certain discovery issues. However, even that would not excuse counsel's failure to respond to Defendant's counsel's repeated attempts to confer, and it was ultimately counsel's failure to respond to Defendant's counsel's communications that necessitated the instant Motion. Moreover, even assuming that Plaintiff's conduct was also responsible in part for necessitating Defendant's Motion, “an attorney's willful blindness or his acquiescence to the misfeasance of his client” is not a basis for immunizing the attorney from personal liability for expenses under Rule 37. Devaney, 989 F.2d at 1161-62.