UNITED HEALTHCARE SERVICES, INC., et al., Plaintiffs, v. NEXT HEALTH, LLC, et al., Defendants Case No. 3:17-cv-0243-E-BT United States District Court, N.D. Texas, Dallas Division Filed September 16, 2020 Counsel Adam Joseph Sinton, Benjamin Daniel Van Horn, Sinton Scott Minock & Kerew, Denver, CO, Andrew G. Jubinsky, Leda Pauline Juengerman, Timothy A. Daniels, Figari & Davenport LLP, Dallas, TX, Joseph James Minock, Ssmk Legal LLC, Atlanta, GA, Nicole Marie Bigman, Scott Preston Kerew, Sinton Scott Minock & Kerew, Atlanta, GA, for Plaintiffs. Alexandra Hunt, Dallas, TX, Connor Nash, Nash Law PLLC, Dallas, TX, Daniel L. Wyde, Wyde & Associates, Dallas, TX, James S. Bell, James S. Bell PC, Dallas, TX, Ralph Ritch Roberts, III, Law Offices of R. Ritch Roberts, Dallas, TX, for Defendant Next Health LLC. Alexandra Hunt, Dallas, TX, Connor Nash, Nash Law PLLC, Dallas, TX, Daniel L. Wyde, Wyde & Associates, Dallas, TX, James S. Bell, James S. Bell PC, Dallas, TX, for Defendants United Toxicology LLC, Medicus Laboratories LLC, US Toxicology LLC, American Laboratories Group LLC. Alexandra Hunt, Dallas, TX, James S. Bell, James S. Bell PC, Dallas, TX, for Defendants Apex Pharma LLC, Executive Healthcare LLC, Total Pharma LLC, True Labs LLC, Dallasite Inc. Brian Daniel Poe, Brian D. Poe Attorney PLLC, Fort Worth, TX, for Defendant Andrew Hillman. Michael J. Lang, David F. Wishnew, Mark T.J. Jones, Crawford Wishnew & Lang PLLC, Dallas, TX, for Defendant Pioneer Laboratories LLC Erik Bugen, Beaumont, TX, Pro Se. Rutherford, Rebecca, United States Magistrate Judge ORDER AWARDING ATTORNEYS' FEES *1 On September 20, 2019, the Court entered an Order (ECF No. 290) granting Plaintiffs UnitedHealthcare Services, Inc. and UnitedHealthcare Insurance Company's Motion to Enforce Compliance with the Court's Prior Discovery Order. The Order established a schedule for production of documents and required Plaintiffs to file an application for the reasonable expenses incurred in moving to compel Defendants Next Health, American Laboratories Group, Medicus Laboratories, United Toxicology, and U.S. Toxicology (the “Entity Defendants”) to comply with a prior discovery order. Plaintiffs subsequently filed an application seeking $15,869.36 in attorneys' fees and expenses, and the Court took the matter under advisement while discovery efforts continued. After consideration of Plaintiffs' application and the Entity Defendants' response, the Court orders the Entity Defendants to pay Plaintiffs $9,462.96 for reasonable expenses, including attorneys' fees, incurred in bringing their discovery motion. Federal Rule of Civil Procedure 37(b)(2)(A) authorizes courts to impose sanctions, including case dispositive sanctions, for failures to obey discovery orders. Fed. R. Civ. P. 37(b)(2)(A). Rule 37(b)(2)(C) further provides that, “[i]nstead of or in addition to the orders [described under Rule 37(b)(2)(A)], the court must order the disobedient party, 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(b)(2)(C) (emphasis added). Additionally, Rule 37(a)(5)(A) provides that, if a motion to compel is granted, or if the requested discovery is provided after the motion to compel was filed, the Court “must, after giving an opportunity to be heard, require the party ... 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,” except that “the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A) (emphasis added). Plaintiffs filed their Motion to Enforce Compliance with the Court's Prior Discovery Order (ECF No. 275) on August 6, 2019. The certificate of conference included with this motion represents—and the Entity Defendants do not dispute—that Plaintiffs' counsel attempted in good faith to obtain the disputed discovery without court action prior to filing the motion. See Mot. 8. On September 20, 2019, the Court granted Plaintiffs' discovery motion and ordered the Entity Defendants to produce discovery to Plaintiffs on a rolling basis. Accordingly, the Court must require the Entity Defendants and/or their attorneys to pay Plaintiffs' reasonable expenses incurred in bringing the discovery motion, unless the Entity Defendants show their nondisclosure or failure to comply with the prior discovery order was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(b)(2)(C); Fed. R. Civ. P. 37(a)(5)(A). *2 The Entity Defendants fail to make the required showing to avoid paying Plaintiffs' reasonable expenses. First, the Entity Defendants' failure to comply with the Court's prior order and produce discovery was not “substantially justified.” There is no genuine dispute over whether they were required to comply with the Court's July 29, 2019 discovery order. See S.E.C. v. Kiselak Capital Grp., LLC, 2012 WL 369450, at *5 (N.D. Tex. Feb. 3, 2012) (citations omitted) (“A party's discovery conduct is found to be ‘substantially justified’ under Rule 37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.’ ”). And further, no other circumstances make an award of expenses unjust. The Entity Defendants baldly assert that “the pendency of related criminal proceedings against former executives, including forfeitures and seizures of assets and equipment, have prejudiced the Entity Defendants' ability to not only vigorously defend themselves, but also comply with the Court's discovery orders and United's discovery demands.” Resp. 2 (ECF No. 331). The Entity Defendants other legal entanglements do not excuse their failure to comply with the Court's prior order to produce discovery. The Entity Defendants' failure to promptly comply necessitated Plaintiffs' discovery motion, and Plaintiffs are entitled to recover their reasonable expenses from the Entity Defendants.[1] The Court utilizes the “lodestar” method in calculating the attorneys' fee award. See Heidtman v. Cnty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citations omitted). The lodestar is calculated by multiplying the reasonable number of hours spent on the case by an attorney by an appropriate hourly rate. See Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012). A party seeking attorneys' fees bears the burden of establishing that the number of hours expended were reasonable with adequately recorded time records as evidentiary support. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The Court uses this time as the benchmark, but should exclude any time that is excessive, duplicative, unnecessary, or not adequately documented. See id. There is a strong presumption that the lodestar amount is reasonable. See Perdue v. Kenny A., 559 U.S. 542, 552 (2010). After calculation of the lodestar amount, the Court can either (1) accept the lodestar or (2) decrease or enhance the lodestar based on the circumstances of the case, taking into consideration the Johnson factors. See La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324, 329 (5th Cir. 1995); Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the legal issues; (3) the skill required to properly perform the legal service; (4) the preclusion of other employment; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of counsel; (10) the desirability of the case; (11) the duration and nature of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 448 F.2d at 717-19. Because the lodestar is presumed to be reasonable, it should be modified only in exceptional cases. See Watkins, 7 F.3d at 457. Furthermore, the lodestar amount may not be adjusted due to a Johnson factor that was already considered during the initial calculation. See Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th Cir. 2006). Here, Plaintiffs seek a total of $15,869.36, which represents $14,729.40 in attorneys' fees and $1,139.96 in travel expenses, incurred in bringing the discovery motion. The Declaration attached to Plaintiffs' fee application establishes that attorneys at Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC worked a total of 38.4 hours on the discovery motion. This includes: (a) 14.9 hours for drafting and filing the motion and accompanying declaration, (b) 9.0 hours conferring with Entity Defendants concerning Court-ordered Joint Reports and drafting and revising two Joint Reports, and (c) 14.5 hours preparing for, attending, and traveling home from the September 20, 2019 hearing on Plaintiffs' motion. *3 However, a careful review of the Declaration shows that some of the time billed was duplicative and unnecessary. In particular, three different partners worked almost 15 hours to draft and revise a nine-page motion and a two-page declaration. As the Court noted at the conclusion of the September 20, 2019 hearing, the motion was “not complicated” and should not have taken “a mid-level associate more than a couple hours to prepare it.” Accordingly, the Court excludes 10 hours of attorney time as duplicative. Additionally, courts often discount the hourly rate for travel time—even when the attorney represents that she is working. See, e.g., In re Babcock & Wilcox Co., 526 F.3d 824, 828 (5th Cir. 2008) (evaluating Fifth Circuit precedent from various types of cases and concluding as a general rule that “it is not an abuse of discretion to discount non-working (and even working) travel time”); Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (affirming district court's decision to discount hourly rate billed by 50% for travel time); Saldivar v. Rodela, 894 F.Supp.2d 916, 939 (W.D. Tex. 2012) (awarding attorney fees for travel time at one-half of normal hourly rate). The Court finds it is appropriate to discount by 50% the 11.2 hours Ms. Murray billed for travel. Thus, the Court excludes an additional 5.6 hours of attorney time as excessive. Plaintiffs' Declaration further establishes that the partners who worked on the discovery motion are experienced attorneys. Claire C. Murray has practiced law since 2000 and charges an hourly rate of $365.00. Mot. Ex. B 3, ¶ 7 (ECF No. 305-2). Scott P. Kerew, similarly, has been an attorney since 1999 and charges an hourly rate of $365.00. Id. Finally, Andrew J. Sinton has only practiced law since 2012, but he charges an hourly rate of $423.00. Plaintiffs propose that a blended rate of $383.58 for all three attorneys is reasonable. However, the Court finds that an hourly rate of $365.00 is reasonable and comports with prevailing rates in the community. Accordingly, the Court calculates the lodestar to be $8,322.00, which represents 22.8 hours of attorney time at the blended rate of $365.00. Although there is a strong presumption that this lodestar figure is reasonable, the Court considers whether it should be adjusted upward or downward based on the Johnson factors. Here, the Court finds that no adjustment to the lodestar figure is necessary. The discovery motion was straightforward. The issues involved were neither novel nor difficult. Pursuit of the discovery did not require any unique skill or expertise on the part of Plaintiffs' attorneys, nor did it require more than the usual investment of time or labor. Counsel billed Plaintiffs on an hourly basis, and there is no evidence before the court that Plaintiffs imposed any time limitation on the attorneys or that other circumstances made representing Plaintiffs undesirable. Counsel charged a customary fee, which resulted in an award that is reasonable for this type of motion. Accordingly, the Court ORDERS the Entity Defendants to pay Plaintiffs $8,322.00 in attorneys' fees. Plaintiffs also claim $1,139.96 in travel expenses incurred on the trip to and from Dallas, Texas, to attend the September 20, 2019 hearing. Expenses included $539.60 in airfare, $414.64 in lodging, $133.77 in ground transportation, $45.95 in meals, and $6.00 in miscellaneous expenses. These are reasonable amounts for necessary expenses for this type of case. Therefore, the Court ORDERS the Entity Defendants to pay Plaintiffs $1,139.96 in expenses. Conclusion *4 No later than October 16, 2020, the Entity Defendants will pay Plaintiffs $9,462.96 for reasonable expenses incurred in bringing their Motion to Enforce Compliance with the Court's Prior Discovery Order. SO ORDERED. Footnotes [1] Although both parties and their counsel may be held personally liable for expenses caused by the failure to comply with discovery orders, Plaintiffs do not seek to have defense counsel pay any of the expenses incurred in bringing their Motion to Enforce Compliance with the Court's Prior Discovery Order.