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Rogers v. Bank of America

United States District Court, D. Kansas

November 21, 2014

SHELLI F. ROGERS, Plaintiff,
BANK OF AMERICA, N.A., Defendant.


TERESA J. JAMES, Magistrate Judge.

This matter is before the Court on Plaintiff's Application for Attorneys' Fees (ECF No. 51). Plaintiff requests that the Court award her $27, 457.50 in total attorneys' fees related to her motions to compel production of Defendant's initial and supplemental disclosures. Defendant opposes the application, claiming that the amount of attorneys' fees requested by Plaintiff is excessive, unreasonable, and exceeds the scope of the Court's order granting Plaintiff's request for her reasonable expenses.

By Memorandum and Order dated September 19, 2014 (ECF No. 47), the Court granted Plaintiff's Motion to Compel Defendant's Supplemental Disclosures.[1] As part of its ruling, the Court granted Plaintiff's request for her attorneys' fees and expenses under Fed.R.Civ.P. 37(a)(5)(A) that she incurred in bringing the motion to compel supplemental disclosures and instructed Plaintiff's counsel to submit an affidavit itemizing the reasonable expenses. In response, Plaintiff filed the instant Application for Attorneys' Fees with a supporting affidavit and billing statement. Defendant filed its Opposition (ECF No. 54) to the application, objecting to Plaintiff's requested attorneys' fees on a number of grounds.

Federal Rule of Civil Procedure 37(a)(5)(A) provides that if a motion to compel discovery is granted or the disclosure or requested discovery is provided after the motion is filed, "the court must, after giving an opportunity to be heard, require the party... whose conduct necessitated the motion, ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." The court, however, must not order payment of reasonable expenses in certain circumstances, such as where the movant fails to confer before filing the motion, the opposing party's nondisclosure, response, or objection was substantially justified, or an award of expenses would be unjust.[2] In its September 19 Order, the Court found that Defendant did not provide Plaintiff with the name and contact information of each individual likely to have discoverable information that it may use to support its claims or defenses until after Plaintiff filed her first motion to compel these disclosures. The Court concluded that therefore, under Rule 37, it was required to order payment of Plaintiff's reasonable expenses, including attorney's fees, caused by Defendant's failure to disclose. The Court therefore proceeds directly to the determination of whether the amount of expenses, including attorneys' fees requested by Plaintiff, is reasonable.

Reasonable attorneys' fees under Rule 37(a)(5) are typically calculated using the lodestar methodology, which requires the court to multiply the hours counsel for the party seeking attorneys' fees reasonably spent on the discovery motion by a reasonable hourly rate.[3] The applicant bears the burden of proving that it is entitled to an award and of documenting the appropriate hours expended and hourly rates.[4] Once the applicant has met its burden, the lodestar amount is presumed to be a reasonable fee.[5]

I. Reasonable Hourly Rate

"The first step in setting a rate of compensation for the hours reasonably expended is to determine what lawyers of comparable skill and experience practicing in the area in which the litigation occurs would charge for their time."[6] Reasonable fees "are to be calculated according to the prevailing market rates in the relevant community."[7] "The relevant community is the place of trial."[8]

[T]he burden is on the fee applicant to produce satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to-for convenience-as the prevailing market rate.[9]

"Only if the district court does not have before it adequate evidence of prevailing market rates may the court, in its discretion, use other relevant factors, including its own knowledge, to establish the rate."[10]

Plaintiff offers the Affidavit (ECF No. 51-1) of one of her attorneys, Michelle L. Brenwald, in support of the reasonableness of the billing rates of her counsel. In her Application, Plaintiff seeks attorneys' fees calculated based upon an hourly rate of $300 for the following three partners who billed for work related to the motions to compel initial and supplemental disclosures: Ms. Brenwald, Mr. McElgunn, and Mr. Shadid. Plaintiff seeks attorneys' fees for the one associate, Ms. Kusiak, who billed for this work at a $225 per hour rate. Ms. Brenwald states in her Affidavit that these rates are comparable to the hourly rates charged by other attorneys in the Wichita areas with similar skills and experience. Defendant makes no argument with respect to the reasonableness of the Wichita area attorney billing rates.

Although Plaintiff only offers her own attorney's affidavit, Defendant does not object to the hourly rates used in calculating the amount of attorneys' fees requested. Based upon the Court's own knowledge and a relatively recent case on prevailing attorney billing rates in Wichita, the Court finds that Plaintiff's requested partner hourly rate of $300, as well as associate hourly rate of $225, are in line with the prevailing market rates for attorneys of their experience for similar types of litigation in Wichita, Kansas.[11]

II. Reasonable Hours Expended

The next step in the lodestar calculation is to determine the number of hours counsel reasonably expended in making the discovery motion. The burden is on the applicant to prove that the hours billed are reasonable "by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks."[12] An attorney may not bill to opposing counsel for fees it would not be able to bill to its client.[13] The court must also analyze whether the applicant has exercised "billing judgment, " and may reduce the number of hours devoted to specific tasks if the number of hours claimed by counsel includes hours that were "unnecessary, irrelevant, and duplicative."[14] When performing such an adjustment, the court need not identify and justify each disallowed hour but need only articulate reasons for a general reduction of hours needed to arrive at a reasonable number of hours.[15]

The Court has reviewed Plaintiff's Application and supporting exhibits and has taken into consideration the various factors set forth in Rule 1.5(a) of the Model Rules of Professional Conduct, as adopted by the Kansas Supreme Court, which are to be used in determining the reasonableness of a lawyer's fee. The Court has also considered ...

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