The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the follow up to plaintiff's motion to compel (Docket No. 25). In granting that motion (Docket No. 34, Order of Mar. 28, 2006), this Court ordered plaintiff's counsel to file an affidavit of her motion-related costs relative to this motion (and not for her earlier motion to compel and for extension of time (Docket No. 34, Order at 9; see Docket Nos. 16, 18 (initial motion to compel))), within five business days of entry of that Order.
Plaintiff filed her timely affidavit (Docket No. 36, filed Apr. 3, 2006). Defendant was given an opportunity to respond to this submission within ten days of entry of the Order (see Docket No. 34), or by April 11, 2006, and defendant's attorney filed a responding affidavit on April 5, 2006 (Docket No. 37). Unbidden*fn1 , plaintiff filed a reply affidavit (Docket No. 38). The Court deemed this fee application to be submitted as of April 11, 2006 (see Docket No. 34).
This fee application arises in a diversity personal injury action removed from state court to this Court, where plaintiff alleges injuries stemming from her fall in an elevator at defendant's Eastern Hills Mall store (see Docket No. 1, Notice of Removal, Ex., state court Complaint; Docket No. 23, Order, at 1). On May 19, 2005, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 7).
Plaintiff initially moved for extension of time to complete discovery and to compel production of certain items*fn2 (see Docket Nos. 16, 18 (motion), 23 (Order at 2-3, 4)). The Court granted in part plaintiff's request for an extension of time but denied her motion to compel without prejudice since defendant had time to respond to plaintiff's demands when that motion was filed. If defendant failed to produce or if plaintiff otherwise was unsatisfied with defendant's production, plaintiff could renew her motion (Docket No. 23, Order at 4; see Docket No. 34, Order at 2), which she did (Docket No. 25).
Plaintiff then filed her second motion to compel (Docket No. 25) seeking to compel responses to her document demands, requests for admissions, interrogatories, and an extension of time for her expert to issue a report (see Docket No. 34, Order at 2, 3). The issues in this second motion differ from those in the first, although both motions address the basic problem of defendant's failure to adequately respond to plaintiff's discovery demands. This Court granted plaintiff's motion, order defendant to comply with all of her discovery demands (see generally Docket No. 34). Having prevailed on her discovery motion (see id. at 4-6, 7 (granting extension of time for expert's report)), under Rule 37, the Court held the appropriate sanction was the costs for making this second motion (id. at 7-9).
Plaintiff's counsel claims that five hours and fifteen minutes were spent preparing and arguing this motion, at her billing rate of $250 per hour, plus motion expenses totaling $46.75 (Docket No. 36, Pl. Atty. Aff. ¶¶ 5, 7, 6). Although not stated in her papers, at the rate cited by plaintiff's counsel, the total attorney's fee sought would be $1,312.50, and total motion costs with expenses would be $1,359.25. Plaintiff has not produced billing records*fn3 or a summary of counsel's activities to support this application. Plaintiff also does not describe the experience of her counsel or whether her billing rate is reasonable for practitioners in this district with similar experience.
The 5.25 hours claimed includes 2.25 hours*fn4 spent on the first motion to compel of December 7, 2005 (id. ¶ 5; see Docket Nos. 16, 18 (motion of Dec. 7, 2005); see also Docket No. 37, Def. Atty. Aff. ¶¶ 4-5). The motion expenses claimed were for both motions (see Docket No. 36, Pl. Atty. Aff. ¶ 6; Docket No. 38, Pl. Atty. Reply Aff. ¶ 8; cf. Docket No. 37, Def. Atty. Aff. ¶ 6).
Defendant objects to plaintiff's application because it claims motion expenses for the first motion to compel against this Court's express direction to determine the costs only for the second motion (Docket No. 37, Def. Atty. Aff. ¶¶ 4-7). Defense counsel also objects to the attorney's fee rate charged by plaintiff's counsel, noting that his fee is only $115 per hour, and asks the Court to note this disparity in determining the reasonable costs for this motion (id. ¶ 9). Alternatively, defendant asks either that motion costs not be imposed (due to defendant's alleged good faith in adhering to the Court's Scheduling Order and attempts to furnish the discovery sought) or to set a reasonable amount for the costs (id. ¶ 8). Defendant apparently does not object to the cost per page of plaintiff's duplication (even if applied only to papers in the second motion) or the amount of attorney's time expended on that second motion.
Plaintiff then filed a reply affidavit from a senior attorney in plaintiff's firm (Docket No. 38, Reply Aff. of Eugene Tenney) which decries defense counsel's personal attacks in opposition to this fee application (id. ¶ 5). Plaintiff's counsel replies that the costs of operating his firm differs from defense counsel's firm and thus defense counsel's rates are irrelevant and not controlling in determining plaintiff's reasonable rate (id. ¶ 6). Plaintiff in this reply, however, does not explain how her counsel arrived at her rate. Since both motions to compel "sought to compel the same relief," plaintiff's counsel assumed that the work involved with both motions was to be considered (id. ¶ 4), despite the express declaration in this Court's Order to the contrary (Docket No. 34, Order at 9).