The opinion of the court was delivered by: Hon. Hugh B. Scott
Presently before the Court is plaintiffs' application (Docket No. 26) for its motion expenses from their motion to compel and to amend the Scheduling Order (Docket Nos. 17, 18). This Court granted plaintiffs' motion to compel (Docket No. 23, Order of Mar. 19, 2010); familiarity with that Order is presumed. That Order allowed plaintiffs to submit their application to recover motion costs (id. at 5-6), with the application due by April 2, 2010, and any reply due by April 9, 2010, with the application submitted (without oral argument) on April 9, 2010 (id.). Plaintiffs now seek to recover $3,000 in attorneys' fees relative to this motion (Docket No. 26, Pls. Atty. Aff. ¶ 3). Also pending is defendant's motion for judgment on its pleadings (Docket No. 24).
Plaintiffs submitted their application (Docket No. 26*fn1 ) and defendant responded in opposition (Docket No. 27*fn2 ).
This is a removed diversity*fn3 contract action, seeking damages for breach of an insurance contract (Docket No. 1, Notice of Removal). Plaintiffs (parents Robert and Joell Runge and their daughter Rebecca) sued defendant insurer for failing to reimburse them for the costs of replacing their home following a fire (id., Ex. A, Compl. ¶ 1).
Plaintiffs' Motion to Compel
On January 20, 2010, plaintiffs Robert and Joell Runge moved to compel defendant's response to their discovery demands (Docket No. 18). Plaintiffs wrote stating that they expected discovery responses by December 31, 2009, but they had not received any responses (id., Pls. Atty. Affirm. ¶ 17, Ex. H). In response to this motion, defendant stated that it served its discovery production on March 1, 2010 (Docket No. 20, Def. Atty. Affirm. ¶¶ 3, 4, Exs. A, B), the same time responses to the motion to compel were due (see Docket No. 19). Plaintiffs then challenged the timeliness and responsiveness of this production (Docket No. 22, Pls. Atty. Reply Affirm. ¶¶ 7, 10-15).
Plaintiffs' motion was granted, despite defendant's production of discovery while the motion was pending (Docket No. 23).
Plaintiffs' Fee Application
Plaintiffs moved to recover their fees for moving to compel (Docket No. 18, Pls. Atty. Affirm. ¶¶ 23-27), noting that defendant's belated and incomplete production was not justified so as to excuse imposition of sanctions (Docket No. 22, Pls. Atty. Reply Affirm. ¶¶ 7, 9). Defendant initially did not discuss this aspect of the motion.
Pursuant to Rule 37, the parties were given an opportunity to be heard on this issue. Plaintiffs were to submit an affidavit of their motion costs by fourteen days from entry of the Order to compel (or by April 2, 2010); and defendant responded (including arguing why imposition of costs here would be unjust, see Fed. R. Civ. P. 37(a)(5)(i)-(iii)) within twenty-one days from entry of this Order (or by April 9, 2010) (Docket No. 23, Order at 6).
Plaintiffs now seek to recover $3,000 in attorneys' fees relative to their motion (Docket No. 26, Pls. Atty. Aff. in support of Fee Appl. ¶ 3, Ex. A). Plaintiffs' counsel, a practitioner before this Court for nineteen years, quoted a rate of $200 per hour, and claims spending 6.4 hours drafting the original motion to compel papers and 8.6 hours drafting the reply papers (including reviewing defendant's discovery production), for a total of 15 hours (id. ¶¶ 4, 5, 6-7).
Defendant argues, first, that it sought a stipulation extending time for completing discovery which plaintiffs' denied (Docket No. 27, Def. Atty. Aff. ¶ 5). Defendant also offered to produce for review a redacted version of the claim file, containing much of the documents sought to be produced (id. ¶ 6). Defense counsel then treated the briefing schedule as an extension of the discovery demand deadlines (id. ¶ 7). Defendant argues that these and other extenuating factors (the end of year business rush and deadlines in other cases) existed that prevented a more timely discovery response (id. ¶ 11). Defendant objects to the fee application since the majority of time claimed occurred after its responses were served, concluding that defendant should not pay for the time spent in otherwise normal review of discovery production (id.). Since the only transgression here was defendant's untimely discovery production, defendant concludes that (if any sanction should imposed) it should only be for the costs incurred by plaintiffs in making their original motion (id. ¶ 13).
In their reply, plaintiffs state that defense counsel admits to delaying production by five and a half weeks while the motion to compel was pending (Docket No. 29, Pls. Atty. Reply Aff. ¶ 12). They also note that defendant's pending motion for judgment on the pleadings (usually filed at the outset of a case) was filed months later, providing another example of the "additional costs on [defendant's] insured and . . . delay" of payment owed to plaintiffs (id. ¶ 14). ...