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Alliance Industries, Inc. v. Longyear Holding

October 12, 2010


The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge

Hon. Hugh B. Scott


Before the Court is the latest motion of plaintiff/counterclaim defendant Alliance Industries ("Alliance") to compel (Docket No. 63; cf. Docket No. 44 (plaintiff's motion for extension of time and to compel discovery)). This Court granted, in part, Alliance's motion to compel and scheduled briefing on discovery sanctions (Docket No. 69*fn1 ). Alliance then filed its application to recover its reasonable motion expenses associated with that motion (Docket No. 71*fn2 ). Meanwhile, defendant/counterclaim plaintiff Longyear Holdings, Inc. ("Longyear"), moved for reconsideration of so much of the Order compelling it to furnish "further answers to Interrogatories Nos. 1, 3, 4, and 5" (Docket No. 72). This Court denied Longyear's motion for reconsideration and set a deadline for completion of production compelled in the earlier Order (Docket No. 76). That Order also denied, without prejudice, Alliance's application to recover its motion costs because the record presented therein did not provide sufficient support for the requested fee (id. at 6-9).

Alliance then renewed its fee application (Docket No. 77*fn3 ), submitting some substantiation for the fee sought, including billing rates. Alliance also incorporates the initial application (Docket No. 71) in support of this renewed request (Docket No. 77, Notice of Motion at 2; id., Pl. Attys. Jt. Affirm. ¶ 4). Responses to this renewed fee application were due by September 23, 2010, and any reply by October 1, 2010, with the fee application deemed submitted (without oral argument) on October 1, 2010 (Docket No. 78).

As with the prior Orders entered in this case, the parties' familiarity with them is presumed.


This is a diversity stockholders' suit arising from the purchase of stock in a corporation to acquire its subsidiary and subsequent disposition of funds in an escrow account created as part of the transaction (see Docket No. 1, Compl.).

Alliance's Motion to Compel

On April 12, 2010, Alliance sought complete responses to certain interrogatories it posed; documents responsive to its second document demand and a privilege log of documents Longyear withheld as privileged; documents requested during the Rule 30(b)(6) depositions and the deposition of a Longyear employee; and production of a Rule 30(b)(6) representative knowledgeable of tax benefits sought and received by Longyear, aside from the person produced (Docket No. 63, Pl. Attys' Jt. Affirm. ¶ 5; see Docket No. 68, Pl. Reply at 1-2).

Longyear responded (among other arguments) that it provided the relevant and requested items, that Alliance failed to communicate with Longyear to avoid this motion practice, Alliance had not articulated how the items sought were relevant to a claim or defense or specified what it sought (Docket No. 66, Def. Memo. at 1). Longyear also pointed out that it assisted Alliance in locating for deposition a former Longyear employee who now resides in Utah (see Docket No. 69, Order of July 21, 2010, at 4 n.2). Alliance, in its reply, reiterated that Longyear has failed to properly or fully respond to the pending interrogatories and document demands (Docket No. 68, Pl. Reply Memo. at 5-10, 10-13).

The Court granted Alliance's request to answer its Interrogatories Numbers 1, 3, 4, and 5, with a response from Longyear's officer or agent giving "complete answers, even if they refer to documents and testimony already provided to date in this action" (Docket No. 69, Order at 6). The Court also set an application and briefing schedule for Alliance's application for its reasonable motion expenses for its prevailing portions of its motion (id. at 9-10).

Alliance's Fee Application

Alliance's counsel for its claims (Rupp, Baase, Pfalzgraf, Cunningham & Coppola, LLC, hereinafter "Rupp") and for a defense against Longyear's counterclaims (Nixon, Peabody) then submitted a joint application for Alliance's reasonable motion costs, noting that both sets of counsel worked cooperatively to avoid duplication of efforts (Docket No. 71, Pl. Attys. Jt. Affirm. ¶¶ 7-8, 11). Rupp claims a total of $6,462.50 for preparing moving papers and reviewing and replying to Longyear's responses for 23.5 hours of work; Nixon Peabody claims a total of $6,340.00 for 26.7 hours of similar activities (14.5 hours by the counsel, 10.7 hours by an associate, and 1.5 hours by the paralegal) (id. ¶¶ 13-16). Alliance claims a total of both firms of $12,802.50 (id. ¶ 17), waiving recovery of its deemed negligible disbursements (id. ¶ 5). As for apportioning the percentage in which Alliance prevailed to recover, Alliance claims 90%, since the only relief denied was the examination of another Rule 30(b)(6) representative (id. ¶ 17).

Longyear first argued that Alliance is not entitled to recover any reasonable fee award at all, that Alliance failed to establish that Longyear's objections to disclosure were abusive or frivolous and that Longyear was substantially justified in objecting (Docket No. 75, Def. Atty. Affirm. ΒΆΒΆ 4, 8-9, 18-29). It next disputes how much Alliance prevailed, arguing that at best Alliance prevailed at 25-50% rather than 90% claimed, based upon the number of pages Alliance used to argue for the relief ...

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