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Yan Zhao v. United States of America

December 20, 2010


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is a follow up to defendant's motion to compel (Docket No. 25), wherein the Court granted that motion and invited defendant to submit its reasonable motion expenses as a discovery sanction against plaintiff or her counsel (Docket No. 53, Order at 10). Defendant then filed a timely application (Docket No. 54, Def. Atty. Aff.), to which plaintiff responded (Docket No. 60), and the application was deemed submitted as of December 13, 2010 (see Docket No. 53, Order at 10, ordering fee affidavit within ten days of entry of Order and response within twenty days of entry). Familiarity with the Order compelling production (Docket No. 53) is presumed.


This is a Federal Torts Claim Act case for an alleged assault of plaintiff, a Chinese national, at a border crossing into this District, by employees of defendant United States Department of Homeland Security. Defendant moved to compel initial disclosures, answers to Interrogatories, and plaintiff's execution of authorizations without temporal restrictions (Docket No. 25). Defendant's motion was granted in relevant part, compelling production (Docket No. 53, Order), also setting forth the application schedule discussed above for this request to recoup reasonable motion expenses (id. at 10), as well as an Amended Scheduling Order (id. at 10-11, 11-12).

In its application, defendant only seeks to recover as reasonable motion expenses the attorney's fee for the current Assistant U.S. Attorney assigned to this case and her work on the motion, although this motion was filed in late 2007 by another attorney (Docket No. 54, Def. Atty. Aff. ¶¶ 3-4). Assistant U.S. Attorney Roach quoted an hourly rate of $176.42 (id. ¶ 6), for work done to prepare the motion, such as reviewing Chief Judge Skretny's Order, the outstanding discovery demands, plaintiff's response, and drafting defendant's reply, spending four hours in these tasks (id. ¶ 5). Defendant thus claims a total of $705.68 in attorney's fee and no other expenses (id. ¶ 7).

Plaintiff responds that she has no objection to the fee rate quoted by the Assistant U.S. Attorney (Docket No. 60, Pl. Atty. Aff. ¶ 4) but questions the amount of time expended in making this motion (id. ¶¶ 5, 8-10). She argues that defense counsel would have reviewed the discovery produced in any event and that the time claimed should be reduced by half, to two hours (id. ¶¶ 9-10). Alternatively, plaintiff states that there was a legitimate discovery dispute "providing circumstances that make a sanction unjust" (id. ¶ 11). For example, plaintiff claims that a legitimate dispute existed as to the scope of authorizations and interrogatory responses concerning her prior health care providers and a list of expenses that should not be penalized by sanctions (id. ¶¶ 12-13).


I. Reasonable Motion Expenses Standard Imposition of Rule 37(a)(5) sanctions for failure to comply with discovery demands must

be weighed in light of the full record. See Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures, 602 F.2d 1063, 1068 (2d Cir. 1979). This Court has wide discretion to impose sanctions. See Reilly v. NatWest Markets Group Inc., 181 F.3d 253, 267 (2d Cir. 1999), cert. denied, 528 U.S. 1119 (2000). 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 (especially where, as here, the client, the United States, will never be billed as a private sector client would) related to discovery or a motion to compel does not make that rate or time expended reasonable under 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).

Using the lodestar method (or the "presumptively reasonable fee," see Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 111(2d Cir. 2007), method) for calculating the reasonable attorney's fee, Johnson v. the Bon-Ton Stores, No. 05CV170, Docket No. 39, 2006 U.S. Dist. LEXIS 20019, at *8 (W.D.N.Y. Apr. 17, 2006) (Scott, Mag. J.); 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 are the moving attorney's time spent on the motion and the reasonable billing rate for that attorney. The last component for determining the reasonable motion expenses are the other motion expenses incurred. In calculating the "presumptively reasonable fee" this Court "should generally use the prevailing hourly rate in the district where it sits to calculate what has been called the 'lodestar,'" Arbor Hill, supra, 493 F.3d at 111. The movant seeking reimbursement bears the burden of proving the hours spent and the prevailing rates. 7 Moore's Federal Practice--Civil § 37.23[8] (2005); see Johnson, supra, 2006 U.S. Dist. LEXIS 20019, at *11. It is within this Court's discretion to determine the reasonableness of those rates based on the Court's knowledge of prevailing community rates and the relative experience of counsel, Creative Res. Group of N.J., Inc. v. Creative Res. Group, Inc., 212 F.R.D. 94, 103 (E.D.N.Y. 2002) (Wall, Mag. J.) (Report & Recommendations, citation omitted); see Johnson, supra, 2006 U.S. Dist. LEXIS 20019, at *11.

II. Whether to Impose Sanction at All?

Plaintiff argues that sanction should not be imposed at all because some of the items sought compelled were legitimately in dispute (Docket No. 60, Pl. Atty. Aff. ¶¶ 5, 12-16). The Court must not order the payment of motion to compel expenses if the opponent's objection to production "was substantially justified; or . . . other circumstances make an award of expenses unjust," Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii). While plaintiff had a legitimate dispute as to the scope of authorizations she was to execute and interrogatory responses regarding her health care providers and list of expenses incurred, she did not have a substantial justification as to the other discovery areas she did not adequately produce. Plaintiff's argument to deny imposition of any sanction is denied.

Next the Court must calculate the reasonable rate for the sole expense claimed, the ...

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