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Loudermilk v. Best Pallet Co.

November 25, 2009


The opinion of the court was delivered by: Magistrate Judge P. Michael Mahoney


Before the court is Defendant's petition for attorneys' fees and costs associated with the reconvening of Plaintiff's deposition. Plaintiff's deposition originally took place on June 16, 2009. During that deposition, the parties took a lunch break. Plaintiff's deposition resumed, and Defendant's attorney began questioning Plaintiff as to conversations that might have taken place between Plaintiff and his attorney during the break. Plaintiff maintained that no discussions or conversations took place between him and his attorney during the break.*fn1

On June 26, 2009, Plaintiff submitted an affidavit to Defendant to "clarify" his deposition testimony. The affidavit states, "During my deposition I was asked whether I sat with and spoke to my attorney... during a lunch break..... After we ordered our food, [my attorney] sat down at a table, and I remained with Mr. Jones. I subsequently sat down at [my attorney's] table and spoke with him." (Pl. Aff. ¶¶ 4, 6.)

After receiving Plaintiff's affidavit, Defendant filed a motion to reconvene Plaintiff's deposition and for sanctions under Federal Rule of Civil Procedure 37. On August 26, 2009, the court granted Defendant's motion to reconvene Plaintiff's deposition, and instructed Defendant to file a petition for attorneys' fees after the deposition had concluded.

On September 3, 2009, Plaintiff filed a motion to reconsider and, in the alternative, to reconvene the deposition of Kim Rodriguez. The motion raised issues regarding what sanctions would be equitable against Plaintiff for having to reconvene his deposition, as well as the scope of the questioning that could occur at the second deposition. The motion sought leave for Plaintiff to re-take the deposition of Rodriguez. The magistrate gave some guidance as to what topics would be appropriate for the deposition and reiterated that Defendant should submit a petition for fees after the deposition had concluded. The magistrate also granted Plaintiff's motion to reconvene Rodriguez's deposition.

Plaintiff's deposition reconvened on September 30, 2009 and lasted about two hours. (Def. Pet. Ex. F.) Defendant submitted a petition for fees on October 16, 2009 seeking recovery of an astonishing $20,504.20. (Id. at 8.) According to Defendant, this fee represents 69.40 hours of work at hourly rates ranging from $155 to $415, and costs associated with transcribing two court hearings and Plaintiff's second deposition. (Id. Ex. F.) The hours for which Defendant was billed relate to filing Defendant's motion to reconvene Plaintiff's deposition, responding to Plaintiff's motion to reconsider, preparing for and taking Plaintiff's second deposition, and filing Defendant's petition for costs and attorneys' fees. (Id.) It is unclear whether Defendant has paid this bill.

Under Rule 37(a), a party can file a motion to compel when a deponent fails to answer a question asked under Rule 30 or Rule 31. Fed. R. Civ. P. 37(a)(3)(B)(i). If the court grants that motion, "the court must, after giving an opportunity to be heard, require that the party or deponent 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." Fed. R. Civ. P. 37(a)(5)(A).*fn2

The reasonableness of an award of attorneys' fees is determined using the lodestar method: a court is to multiply the number of hours reasonably expended by a reasonable hourly rate. Hensely v. Eckerhart, 461 U.S. 424, 433 (1983). Hours that are excessive, redundant or otherwise unnecessary are not "reasonably expended" and should therefore be excluded from this calculation. Id. The district court is also to consider other factors such as the degree of success obtained by the prevailing party's counsel, the novelty and difficulty of the questions presented, the skill required by the particular case, the customary fee, whether the fee is fixed or contingent, the experience of the attorneys, and awards in similar cases. Id. at 434 n.9 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717--19 (5th Cir. 1974)). Upon weighing the above considerations, the district court is then to exercise its discretion in making an equitable judgment without the constraints of any precise rule or formula. Id. at 436--37.

The work of a law firm's support staff is recoverable where it contributes to the attorney's work product. But, "the court should disallow... hours spent on tasks that would normally not be bill[ed] to a paying client [and] those hours expended by counsel on tasks that are easily delegable to non-professional assista[nts]." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999) (upholding the district court's finding that tasks such as updating a "case list" and calendar with the status of cases, and holding office conferences with a paralegal regarding the paralegal's communications with the court's minute clerk, constituted unrecoverable administrative tasks).

In this case, the hourly rates charged by Defendant's attorneys are reasonable. Ms. Johnson is an associate at the law firm having just graduated law school. Her hourly rate is $155. The court finds this rate reasonable. Mr. Messer and Mr. Stilp are partners at the law firm and experienced attorneys. Their hourly rates are $390 and $415, respectively. Those rates are also reasonable.

However, the court finds that the hours expended are unreasonable. First, Defendant's bill reflects time that Mr. Messer spent traveling to and from Rockford on August 26, September 16, and September 30. Mr. Messer traveled to Rockford on August 26 to present Defendant's motion to reconvene Plaintiff's deposition. At the same hearing, Defendant also presented motions to bar the testimony and strike the affidavit of Eddie Myles, and to determine the sufficiency of answers under Rule 36. On September 16, Mr. Messer traveled to Rockford for the presentment of Plaintiff's motion to reconsider. Also presented on that day was Defendant's unrelated motion to enforce the case management order. On September 30, Mr. Messer traveled to Rockford to take Plaintiff's deposition. A discovery hearing in front of the court was also scheduled for that day.

On all three dates, Mr. Messer drove to Rockford for multiple reasons. He accounted for this on the bill by reducing the hours he charged proportionally. For example, the time sheet reflects that on August 26 he charged for one third of the hours actually spent traveling and in court because only one of the three motions presented that day is relevant to this petition for fees.

However, traveling is necessary and takes the same amount of time whether an attorney is presenting one motion or three. Defendant cannot recover for time that Mr. Messer would have been traveling anyway. The hours reflected on the bill for travel on August 26, September 16, and September 30 are unrecoverable. Also, Defendant has not demonstrated that time was lost in court due to Plaintiff's sanctionable conduct. Travel and court time equal a total of 5.1 hours. Defendant cannot recover for that time. Likewise, Defendant cannot recover the costs incurred for transcribing the court hearings.

Also, Defendant cannot recover for time associated with litigating Plaintiff's motion to reconsider. "A motion for reconsideration of the imposition of sanctions does not risk additional sanctions unless the new motion is itself frivolous." Autotech Corp. v. NSD Corp. et al., 1992 WL 82351, 1992 U.S. Dist. LEXIS 5687, at *8 (N.D. Ill. Apr. 20, 1992) (citing Brown v. Nat'l Bd. of Med. Examiners et al., 800 F.2d 168, 173 (7th Cir. 1986)); see also Peaceful Family Ltd. P'ship et al. v. Van Hedge Fund Advisors, Inc. et al., 2001 U.S. Dist. LEXIS 9816, at *4 (N.D. Ill. July 16, 2001). Plaintiff's motion to reconsider was not frivolous. It raised important issues regarding Plaintiff's deposition and sanction. The portion of Plaintiff's motion seeking to re-convene Rodriguez's deposition was unrelated to Plaintiff's deposition. ...

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