The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is a follow up to the various discovery motions*fn1 that have been filed in this case, a fee application for Rule 37 sanctions (Docket No. 227). Also pending is defendants' cross-motion to strike plaintiffs' attorney affidavit (Docket No. 230).
In their last motion, seeking to compel plaintiffs to answer interrogatories and produce documents (Docket No. 204), defendants Mary Ann Wehlage and the Allegany County Society for the Prevention of Cruelty to Animals (collectively the "SPCA defendant" or "movants") prevailed in the most part (see Docket No. 226, Order, at 5-8*fn2 ) and this Court awarded their reasonable motion costs (including attorneys' fees) as a discovery sanction (id. at 8-9). The Court found that plaintiffs lacked any substantial justification for plaintiffs not to respond to the outstanding demands or insisting upon revised discovery demands when what was sought was clear from the context of the demand (id. at 8-9). The Court ordered the SPCA defendants to submit their application for reasonable motion costs and also to discuss upon whom the sanction should be imposed (id. at 9). The SPCA defendants had five business days from entry of that Order on December 13, 2006 (or by December 20, 2006), to file their fee application and plaintiffs had ten business days (or by December 27, 2006) to respond to that application (id. at 9, Notice of Electronic Filing).
The SPCA defendants submitted a timely application for $488.00, discounting $100 for items argued in the motion for which they did not prevail (Docket No. 227). In support of this application, their counsel (a partner at Hodgson, Russ) indicates that she spent a total of 2.8 hours in preparing the moving papers, at her billing rate of $210 per hour (id., Ex. A). Movants' counsel, however, does not discuss her years of experience (in general or in federal practice) and the basis for her quoted hourly rate. Counsel also did not discuss which party (plaintiffs, their counsel, or both) should be responsible for the sanction (although in the moving papers for this motion to compel, the SPCA defendants sought sanction "against plaintiffs" due to their pattern of dilatory conduct (Docket No. 205, SPCA Defs. Atty. Decl. ¶ 21). In reply in support of that earlier motion, the SPCA defense counsel repeated her demand for sanctions against plaintiffs "especially appropriate in light of plaintiffs' misrepresentations in their untimely affirmation" (Docket No. 213, SPCA Defs. Atty. Reply Decl. ¶ 9), which were made by plaintiffs' new counsel Richard Baumgarten (see Docket Nos. 211, 212).
Plaintiffs respond, through counsel, that the SPCA defendants' error in naming the town where plaintiffs' farm was located lead to this motion and that plaintiffs thus should not be sanctioned for what they believe to be defendants' error (Docket No. 228, Pls. Atty. Aff. ¶ 3). Plaintiffs' attorney, Jeanne Vinal, says that she told defense counsel about this error "over the phone, in e-mail and in letter" (id.). She states that "the plaintiffs simply did not want to answer the demands with this error and gave the defendants a chance to correct the error, but they [the defendants] refused to do so" (id. ¶ 4) and the defense motion would have been avoided if they merely rephrased their demand (id. ¶¶ 5, 3). Plaintiffs now will produce the sought documents, as now described by the Court (id. ¶ 4). Alternatively, and "as a matter of practicality," Vinal states that her clients lost their livelihood with the seizure of the cattle alleged in this action and they cannot afford to pay any sanction (id. ¶ 6). Plaintiffs request that the Court not award any sanctions or costs for this motion (id. at second unnumbered page). They do not attack the fee amount sought or how the amount was obtained.
SPCA defendants now cross-move to strike plaintiffs' attorney affidavit as non-responsive to their fee application as improper (Docket No. 231, SPCA Defs. Atty. Decl. ¶ 5). They note that plaintiffs' affidavit ignores the fee application and "simply parrots plaintiffs' untenable position -- already rejected by the Court -- that the 'farm in Allegany' referred to in the SPCA Defendants' discovery requests was somehow unclear" (id. ¶¶ 2, 3) and that the Court found plaintiffs' position to be baseless (id. ¶ 3). SPCA defendants thus demand the full amount sought in their fee application (id. ¶ 4).
I. Reasonable Motion Costs
Under Rule 37(a)(4), if the motion to compel is granted (even in part, see Fed. R. Civ. P. 37(a)(4)(C)), the Court "shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the discovery or disclosure without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust."
Fed. R. Civ. P. 37(a)(4)(A).
Under Rule 37, the movant is entitled to reasonable costs and attorneys' fees. "If the court determines to award expenses and fees, it is for the court to decide what amount is proper." 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2288, at 666-67 (Civil 2d ed. 1994); see also Addington v. Mid-American Lines, 77 F.R.D. 750, 751 (W.D. Mo. 1978) (three hours at $50 per hour held excessive where opponent merely failed to make timely response to interrogatories, reducing time to one hour). The rate or amount an attorney bills his or her client related to discovery or a motion to compel does not make that rate or time expended reasonable under Rule 30 (or Rule 37) as reasonable motion expenses. See Kahn v. General Motors Corp., No. 88 Civ. 2982, 1993 U.S. Dist. LEXIS 5196, at *4 (S.D.N.Y. Apr. 19, 1993).
The SPCA defendants motion expenses sought in their application are exclusively their attorneys' fee (as ordered, only those portions of the fee for the prevailing items sought in that motion). Using the lodestar method for calculating the reasonable attorney's fee, Monahan v. SZS 33 Assocs., L.P., 154 F.R.D. 78, 83 (S.D.N.Y. 1994) (applying lodestar method to determining attorney's fee for Rule 37(a)(4)(A) relief); New York State NOW v. Cuomo, No. 93 Civ. 7146, 1996 U.S. Dist. LEXIS 17578, at *4 (S.D.N.Y. Nov. 26, 1996) (Francis, Mag. J.) (same); see Hensley v. Eckerhart, 461 U.S. 424, 429-30, 430 n.3 (1983) (applying for fees under 42 U.S.C. § 1988), the components for determining the reasonable attorneys' fee portion of these motion expenses are ...