CAPITOL RECORDS, LLC, and CAPITOL CMG, INC., Plaintiffs, v. JULIA MELLERSKI JOHN MARK OSSENMACHER, JASON JOHN OSSENMACHER, TRANSFER TRUST, LLC, and OWM, LLC, Defendants CASE NO. 22-CV-80380-BER United States District Court, S.D. Florida Entered on FLSD Docket October 21, 2024 Reinhart, Bruce E., United States Magistrate Judge ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS’ FEES [ECF No. 118] *1 Plaintiffs ask for $91,480 in attorneys’ fees as a discovery sanction under Fed. R. Civ. P 37(b)(2)(C). That request is GRANTED IN PART and DENIED IN PART. For the following reasons, Defendants Julia Mellerski, John Mark Ossenmacher, and Jason John Ossenmacher shall jointly be liable to Plaintiffs for $36,879.20. If a party “fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2)(A) In addition to any other appropriate sanction, “the court must order the disobedient party, the attorney advising the 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). Plaintiffs first served interrogatories, requests for admission, and requests for production on all Defendants in March 2023. When disputes later arose, I set a discovery hearing for September 28, 2023. At my direction, the parties prepared and submitted a Joint Discovery Memorandum. After the September 28, 2023, hearing, I ordered the Defendants to provide additional discovery by November 30, 2023. ECF Nos 80; 81; 87-1. The Individual Defendants provided partial responses to the discovery requests. The Corporate Defendants did not. Plaintiffs then filed a Motion for Sanctions. ECF No. 87. I found that Defendants had violated Rule 37(b)(2) by not complying with my September 28 Order. ECF No. 99. I gave Plaintiffs leave to file a separate motion for attorneys’ fees and costs. Id. Plaintiffs ask for fees for two categories of tasks. The first task began with preparing the Joint Discovery Memorandum and continued until the Court's Discovery Order on September 28, 2023. (“Category A”). Plaintiffs ask for $39,370.40 for this task. The second task began with reviewing the materials provided in response to the Discovery Order and continued until the Sanctions Order on February 26, 2024. (“Category B”). Plaintiffs ask for $52,109.60 for this task. Defendants first say that the Category A fees and costs cannot be recovered because they “are not related to any court motion to compel.” Defendants next say that Plaintiffs should be limited to fees and costs for “only the time spent on Plaintiffs’ sanctions motion” and not time spent reviewing the discovery responses. ECF No. 123 at 2. Third, they say that no fees or costs should be awarded because their “actions were not frivolous, had a factual basis, and acted in good faith in responding.” Id. Finally, they say that any fees should be reduced as unreasonable, duplicative, or insufficiently documented. Id. at 3. The Category A fees and costs are not recoverable under Rule 37(b)(2)(C). First, Plaintiffs’ Reply did not address this argument, so it is conceded. Ryder Truck Rental, Inc. v. Logistics Res. Sols., Inc., No. 21-21573-CIV, 2022 WL 2348642, at *12 (S.D. Fla. May 26, 2022) (collecting cases). Even if the issue were not conceded, the Category A fees predated any order compelling discovery and therefore were not “caused by the failure” to comply with a discovery order. *2 The Category B fees and costs associated with reviewing the discovery provided in response to the September 28 Order are not recoverable. As Defendants correctly note, these fees and costs would have been incurred even if there had been full compliance. But, once Plaintiffs determined that the responses were insufficient, the fees and costs associated with preparing, filing, and litigating the Sanctions Motion are recoverable. In their Response, Defendants argue that they made good faith efforts to comply with the Court's order, but they have not shown that their noncompliance was substantially justified or that an award of expenses is unjust. The party asserting substantial justification or injustice bears the burden of proof. See, e.g., Wyndham Vacation Ownership, Inc. v. Montgomery L. Firm, LLC, No. 8:19-CV-1895-T-36CPT, 2020 WL 3512121, at *3 (M.D. Fla. June 29, 2020). Other than argument in their Response brief, they submit no evidence to support this position. As for the amount of fees sought, Defendants have not argued that Plaintiffs’ requested hourly rates are unreasonable. Based on my familiarity with rates charged in the West Palm Beach market by lawyers with comparable experience, I agree that Mr. Banich's $672 hourly rate and Ms. Yager's $556 hourly rate are reasonable. I have reviewed the invoices attached to Plaintiffs’ motion and find that the time spent by counsel on the Sanctions Motion should be reduced. As an eighth-year associate, Ms. Yager possessed sufficient experience to prepare the Sanctions Motion with minimal supervision from Mr. Banich. Also, their time must be reduced to account for instances of duplicative billing. See Hendershott v. Ostuw, No. 20-CV-80006, 2021 WL 4049305, at *4 (S.D. Fla. Aug. 31, 2021) (deducting time that was double-billed). For these reasons, I find that the time spent by Mr. Banich between December 11, 2023 and February 16, 2024 should be reduced to 15 hours and Ms. Yager's time during this period should be reduced to 48.2 hours. Accordingly, Plaintiffs are entitled to recover $10,080.00 for Mr. Banich's time and $26,799.20 for Ms. Yager's time for a total award of attorneys’ fees in the amount of $36,879.20. DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 21th day of October 2024.