AMERICAN SENIOR COMMUNITIES, L.L.C., Plaintiff, v. JAMES BURKHART, et al., Defendants Case No. 1:17-cv-03273-TWP-DML United States District Court, S.D. Indiana, Indianapolis Division Filed November 25, 2020 Lynch, Debra McVicker, United States Magistrate Judge Order on Motion for Attorneys’ Fees (Dkt. 266) *1 The court's Order on Motions to Quash Subpoenas and for Protective Order (Dkt. 247) awarded under Rule 37(a)(5) to nonparties Rob New and First Federal Savings Bank their reasonable attorneys’ fees in briefing motions to quash and for protective order, directed the parties to attempt to agree on those fees, and required the filing of a motion for fees if agreement could not be reached. Mr. New has filed a motion for fees; the Bank did not. Mr. New seeks a fee award against plaintiff American Senior Communities, L.L.C. (“ASC”) in the amount of $87,718.54. ASC objects that the requested fee is grossly excessive. Analysis Under Rule 37(a)(5), the court's fee award is for work “incurred in making the [discovery] motion.” A reasonable fee for that work is determined by multiplying (1) a reasonable rate by (2) the number of hours reasonably expended. E.g., Mathur v. Board of Trustees, 317 F.3d 738, 742 (7th Cir. 2003). I. The rates sought are reasonable. A reasonable hourly rate presumptively is that rate an attorney actually bills to, and receives from, paying clients, whether or not the attorney practices within the local geographic community in which the case is being litigated. Mathur, 317 F.3d at 744. ASC has not provided good reasons to rebut this presumption, and the court rejects its argument that the rate should be calculated based only on rates Indianapolis lawyers might charge, as opposed to that actually charged to and paid by Mr. New to his longtime Chicago counsel for their work on his motion to quash. Mr. New's decision to use lawyers in Chicago with whom he is familiar was not unreasonable. Because the requested rates are tested market rates, the court approves them as reasonable for purposes of deciding the fee award. II. The amount of fees requested is not reasonable and must be reduced. Mr. New contends that because he actually paid all of the fees which he asks the court to award as reasonable, the court too should accept them as reasonable in awarding fees under Rule 37 and should not apply standards courts have developed in determining reasonable fees when awarding them under various fee-shifting statutes, including civil rights cases. Mr. New cites one district court case to support this proposition, Pepsico, Inc. v. Central Investment Corp., 216 F.R.D. 418 (S.D. Ohio 2002), but that case is inapposite. The Pepsico court awarded fees on two bases: a litigant's successful motion to compel under Rule 37 and sanctions in the form of attorneys’ fees for discovery abuses, including the bad faith withholding of documents. In connection with the latter category (sanctions for bad faith conduct), the court stated that it would not reduce the fees because the motion for sanctions was not wholly successful, reasoning that discounting fees based on the degree of success obtained is a factor addressed in civil rights litigation and is not necessarily applicable to a sanctions award which has a “punitive purpose.” Id. at 421. Rule 37, like civil rights fee-shifting statutes, directs the court to award “reasonable” fees only. This court finds it appropriate to apply time-tested factors in deciding the amount of a reasonable fee. Thus, the court should exclude hours that are “excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The court will also take into account that Mr. New's motion to quash and for protective order relied on one argument—that his prior settlement precluded any discovery to him—that the court rejected. When a particular theory for relief is not successful, the court can either eliminate specific hours attributable in billing records to the unsuccessful theory or make an across-the-board percentage deduction to account for limited success. See Bryant v. City of Chicago, 200 F.3d 1092, 1101 and 1102 (7th Cir. 2002). In addition, the court does not hold itself to “auditing perfection” but is entitled to do “rough justice” in awarding reasonable fees and to use estimates in calculating and allocating an attorneys’ time. See Fox v. Vice, 563 U.S. 826, 838 (2011). *2 Based on the above factors, the arguments made by the parties, and the court's review of the briefing that was done on Mr. New's motion to quash, the court determines that the following adjustments to the hours and fee amounts included in Mr. New's fee petition are appropriate to decide a reasonable fee. Work preceding the preparation and filing of Mr. New's motion to quash and for protective order is excluded. The court limited its award of fees to those compensable under Rule 37(a)(5), i.e., those “incurred in making the [discovery] motion.” Mr. New seeks recovery, however, for approximately 30 hours of work spent in “strategy,” various discussions and communications with ASC to resolve their dispute (pre-motion), discussions with the Bank regarding strategy, and preparing for and participating in the court's required pre-motion conference with the magistrate judge. The court reduces compensable hours as a reasonable fee for the approximate 30 hours of time spent between April 8, 2019, to May 15, 2019 by Chicago counsel, and the approximate 12 hours of work by Indianapolis counsel between April 12, 2019, and May 19, 2019. These amounts are $27,593.75 (Chicago counsel) and $3,619.32 (Indianapolis counsel), totaling $32,213.07. Work performed by Mr. New's counsel in taking the laboring oar on behalf of the Bank in connection with its motion to quash and for protective order is excluded. The Bank is not seeking fees, and the court finds it unreasonable to award to Mr. New fees for his assistance to the Bank—or coordinating with the Bank—in resisting ASC's subpoenas to the Bank. Using an estimate, the court attributes $15,000 for this work, based on the entries at June 10-11 (timekeeper CLM), June 12 (CLM and timekeeper RS), June 13 (RS), and July 24 (CLM), and the overall indication that counsel for Mr. New took the laboring oar for the Bank. The court also applies a 10% across-the-board reduction to the remaining fee amount (after deductions for the matters addressed in paragraphs 1-2 above) to account for (a) lack of success on the theory that Mr. New's settlement precluded ASC from seeking discovery and (b) redundancy of work because of the number of lawyers involved in reading the same documents, sharing the same information, and engaging in numerous undefined “strategy” sessions in the course of briefing a relatively straightforward motion to quash and for protective order. This reduction totals $3,000.00 for Chicago counsel and $600 for Indianapolis counsel. In summary, the court finds that a reasonable fee (subtracting the amounts addressed above from the fee sought by Mr. New) is $36,905.47. The court is satisfied that in light of its review of the briefing on Mr. New's motion to quash, this amount represents a reasonable fee. Conclusion The court GRANTS IN PART and DENIES IN PART Mr. New's motion for attorneys’ fees (Dkt. 266). The court AWARDS under Rule 37(a)(5) to Mr. New and against plaintiff American Senior Communities, L.L.C. attorneys’ fees in the amount of $36,905.47. So ORDERED. Distribution: All ECF-registered counsel of record by email through the court's ECF system Via United States mail: JAMES BURKHART 15426-028 FPC Montgomery MONTGOMERY FEDERAL PRISON CAMP Inmate Mail/Parcels Maxwell Air Force Base Montgomery, AL 36112 DANIEL BENSON 15431-028 FPC Montgomery Montgomery B Wing MONTGOMERY FEDERAL PRISON CAMP Inmate Mail/Parcels Maxwell Air Force Base Montgomery, AL 36112