Jennifer AKRIDGE, Plaintiff, v. ALFA MUTUAL INSURANCE COMPANY, Defendant CASE NO. 2:17-cv-372-JTA United States District Court, M.D. Alabama, Northern Division Signed May 11, 2022 Counsel Julian Lenwood McPhillips, Jr., Kyle David Sawyer, McPhillips Shinbaum, L.L.P., Montgomery, AL, Tanika Larosa Lakes Finney, Law Office of Tanika L. Finney, Montgomery, AL, for Plaintiff. Thomas Andrew Davis, Yvonne Norris Maddalena, Jackson Lewis P.C., Birmingham, AL, for Defendant. Adams, Jerusha T., United States Magistrate Judge ORDER *1 Before the Court is Defendant's Motion for Sanctions (Doc. No. 181) filed as a result of Plaintiff's Motion to Compel Discovery and for Sanctions Pursuant Rule 37 (Doc. No. 179). In denying Plaintiff's motion to compel, this court afforded her an opportunity to be heard as to why Defendant's request for expenses pursuant to Federal Rule of Civil Procedure 37(a)(5)(B) should not be granted. (Doc. No. 188.) Plaintiff filed her Response to Court Order (Doc. No. 190) and Defendant followed with documentation of expenses incurred by Plaintiff's motion (Doc. No. 191). Having considered Defendant's motion for sanctions, Plaintiff's response, and the applicable law, the Court finds that the motion is due to be GRANTED in part and DENIED in part. Defendant seeks repayment for its fees and costs incurred in responding to the Motion, plaintiff's attempts to depose Scott Forrest in a corporate representative capacity, and plaintiff's requests for documents after the close of discovery in contradiction to the stated Orders of the Eleventh Circuit[1] and this Court as allowed by Federal Rule of Civil Procedure 37(a)(5). (Doc. No. 181 at ¶ 21.) Federal Rule of Civil Procedure 37(a)(5)(B) authorizes reasonable expenses for a party that successfully opposes a motion to compel discovery. The relevant text provides [i]f the motion is denied, the court ... must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). Pursuant to the Rule, this court must order an award of reasonable expenses to Defendant unless Plaintiff's motion to compel was substantially justified or if other circumstances would create an injustice. See Smith v. Psychiatric Solutions, Inc., No. 3:08cv3/MCR/EMT, 2008 WL 4274496, at *2 (N.D. Fla. Sept. 12, 2008) (“[E]xpenses should be awarded to Defendants unless one of the exceptions contained in the Rule apply.”). In this Circuit, “[a] motion to compel is substantially justified so long as there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Rubin v. Rubin, Case No. 21-cv-82014-MARRA/MATTHEWMAN, 2022 WL 1125786, at * 2 (S.D. Fla. Apr. 15, 2022) (quoting Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1314 (11th Cir. 2011)). See also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (defining “substantially justified” as having a “reasonable basis both in law and fact”). 1. The motion was not substantially justified. *2 Plaintiff argues that she filed her motion to compel because Defendant produced an unprepared Rule 30(b)(6) witness. (Doc. No. 190 at ¶ 11.) The motion recounted her dissatisfaction with that witness and efforts both to depose Scott Forrest under Rule 30(b)(6) and secure additional documents for the proceeding. (Doc. No. 179 at ¶¶ 5-9.) According to Plaintiff, Defendant was “once again obstructing the necessary and allowable discovery required by the Federal Rules of Civil Procedure.” (Id. at ¶ 12.) Defendant responded that the Eleventh Circuit did not order that Forrest be deposed under Rule 30(b)(6), and that Plaintiff was not allowed to designate any representative on its behalf under the Rule. (Doc. No. 181 at ¶¶ 16-18.) When this Court denied Plaintiff's motion to compel, it briefly addressed Defendant's position that it was not required to produce Forrest for a deposition under Rule 30(b)(6). Citing the Rule, the Court explained that when a notice of deposition or subpoena is directed to an organization, “[t]he named organization must then designate one or more officers, directors, or managing agents ... who consent to testify on its behalf....” (Doc. No. 188 at 3.) See Thermolife Int'l, LLC v. Vital Pharm., Inc., Case No. 14-61864-CIV-ZLOCH, 2015 WL 11197783, at *1 (S.D. Fla. Oct. 5, 2015) (“Under Rule 30(b)(6), the corporation has the obligation to select the individual witness.”) The Court further noted that the Eleventh Circuit's opinion remanding this case did not allow Plaintiff to designate Forrest as a 30(b)(6) witness. (Doc. No. 188 at 3.) Despite Plaintiff's position that Defendant's choice of deponent was designed to circumvent its discovery obligations, she was not entitled to force Forrest's appearance under Rule 30(b)(6). See QBE Ins. Corp. v. Jorda Enter., Inc., 277 F.R.D. 676, 688-89 (S.D. Fla. 2012) (finding no requirement in Rule 30(b)(6) that a corporation's designated representative have personal knowledge of the designated subject matter or be the most knowledgeable witness). Thus, Plaintiff sought enforcement of a right that does not exist, either under Rule 30(b)(6) or the Eleventh Circuit opinion remanding the case. Because the text of the Rule makes clear that Plaintiff could not compel the corporate deponent of her choice, the Court finds that Plaintiff's motion was not substantially justified, as it lacked a “reasonable basis both in law and fact.” Pierce, 487 U.S. at 565. Accordingly, Defendant is entitled to costs incurred by Plaintiff's motion under Rule 37(a)(5)(B).[2] 2. The award is limited to reasonable expenses incurred in opposing the motion. Courts in this Circuit have adopted the lodestar method to determine the amount of attorney's fees to be awarded. Schafler v. Fairway Park Condominium Ass'n, 147 F. App'x 113, 114 (11th Cir. 2005) (per curiam). “The starting point ... is to multiply the number of hours reasonably expended by a reasonable hourly rate.... This ‘lodestar’ may then be adjusted for the results obtained.” Lorager v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (internal citation omitted). “The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Norman v. Hous. Auth. Of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988.) “Excessive, redundant or otherwise unnecessary” hours are excluded from a court's calculations. Renuen Corp. v. Lameira, No. 6:14-cv-1754-Orl-41TBS, 2015 WL 1815698, at * 3 (M.D. Fla. Apr. 22, 2015) (quoting Hensley v. Eckerhard, 461 U.S. 424, 434 (1983)). “Ultimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no precise rule or formula for making these determinations.’ ” Villano v. City of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir. 2001) (quoting Hensley, 461 U.S. at 436). *3 Defense counsel submitted an itemized accounting of time expended in this case totaling $3403.00. (Doc. No. 191 at 4-7.) The Court divides the submissions into expenses related to the underlying discovery dispute between October 20-25, 2021, and those incurred after Plaintiff filed her motion on October 28, 2021. (Id. at 4-6.) Because Rule 37(a)(5)(B) specifically limits the prevailing party's recovery to “reasonable expenses incurred in opposing the motion,” the Court will not grant an award for time expended before the Plaintiff's motion was filed. Fed. R. Civ. P. 37(a)(5)(B); Renuen, 2015 WL 1815698, at * 3. Excluding those costs not attributable to opposing Plaintiff's motion, Defendant's requested award is as follows. Attorney Hours Rate Amount Yvonne Maddalena 3.6 $275 $ 990.00 Thomas Davis 2.9 $320 $ 928.00 TOTAL $1918.00 Plaintiff has not filed any objection to Defendant's requested hourly rate or time expended in opposing her motion. The Court therefore finds that the time expended by the defense on the motion including review, preparation of response, preparation for oral argument and attendance at oral argument are reasonable. Accordingly, Defendant is entitled to recover from Plaintiff the amount of $1918.00 in reasonable expenses for the successful opposition to the motion to compel. For the foregoing reasons, it is hereby ORDERED as follows: 1. Defendant's Motion for Sanctions (Doc. No. 181) is GRANTED in part and DENIED in part. 2. Plaintiff shall pay to Defendant the sum of $1918.00 for reasonable expenses incurred in opposing the motion to compel. DONE this 11th day of May, 2022. Footnotes [1] The Eleventh Circuit remanded this case with directions that Plaintiff be allowed to depose Scott Forrest, Defendant's Executive Vice-President for Administration. See Akridge v. Alfa Mutual Ins. Co., 1 F.4th 1271, 1278 (11th Cir. 2021). Forrest sat for his deposition on December 2, 2021. (See Doc. No. 194-11, Deposition of Scott Forrest.) [2] Plaintiff's Response did not argue the existence of circumstances that would make an award of expenses unjust, and the Court does not find such circumstances. (See Doc. No. 190); Fed. R. Civ. P. 37(a)(5)(B).