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Peggy Harley v. Ann Nesby

May 2, 2012

PEGGY HARLEY, PLAINTIFF,
v.
ANN NESBY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

OPINION AND ORDER

I. Introduction

In my Opinion and Order dated December 12, 2011 (Docket Item 65), I ordered plaintiff to pay defendants Shanachie Entertainment Corporation and Vaughn Harper ("Shanachie," "Harper," or collectively, the "Moving Defendants") reasonable attorneys' fees and costs incurred in making their motion for sanctions dated February 17, 2011 (Docket Item 58). In that Order, I also directed the Moving Defendants to submit (1) contemporaneous billing records and the information necessary to evaluate the reasonableness of their attorneys' billing rates and (2) invoices for any costs that they have incurred.

Balber Pickard Maldonado & Van Der Tuin, P.C. ("Balber Pickard"), attorneys for defendant Shanachie, and Melvin L. Reddick, Esq., attorney for defendant Harper, have made the required submissions (Docket Items 67 and 70). For the reasons set forth below, (1) Balber Pickard is awarded $11,631.63 in fees and $459.36 in costs and (2) Reddick is awarded $1,072.50 in fees.

II. Facts*fn1

Plaintiff commenced this action to recover damages related to the alleged infringement of her musical work entitled "It Will Never Happen Again." Plaintiff alleges that she provided Harper with a copy of her ten-track album, which contained "It Will Never Happen Again," and, in retaliation for her refusing to work with Harper on a forthcoming production, Harper, together with defendants Ann Nesby, Timothy W. Lee, and several others, conspired to steal her work and re-titled it "I Apologize." (Amended Complaint ("Am. Compl.") (Docket Item 4), 5).

I shall summarize the underlying discovery disputes between plaintiff and the Moving Defendants because they are relevant to the time periods for which the defendants can recover attorneys' fees and costs.

A. Shanachie's Discovery Requests

By Order dated March 23, 2010, the Honorable William H. Pauley, III, United States District Judge, directed that all discovery in the action be completed by July 30, 2010 (Scheduling Order No. 5 dated July 30, 2010 (Docket Item 27)). On April 9, 2010, Shanachie served interrogatories and requests for document production on plaintiff (Ex. A to Declaration of Roger J. Maldonado, Esq. in Support of Motion to Impose Sanctions, dated Feb. 17, 2011 ("Maldonado Decl. attached to Mot. for Sanctions") (Docket Item 59)). After plaintiff failed to respond to these discovery requests and to Shanachie's request to confer on the matter, Judge Pauley held a discovery conference on June 24, 2010. As a result of this conference, and by Order dated June 28, 2010, Judge Pauley directed plaintiff to serve responses to Shanachie's discovery requests by July 30, 2010 and extended the discovery deadline to November 5, 2010 (Ex. D to Maldonado Decl. attached to Mot. for Sanctions; see also Discovery Order dated June 28, 2010 (Docket Item 39)). Although plaintiff served a response to Shanachie's discovery requests on July 24, 2010, she did not produce any documents and her response was, therefore, deficient (see Ex. E to Maldonado Decl. attached to Mot. for Sanctions).

On September 7, 2010, after again attempting to confer with plaintiff about the discovery requests, Shanachie wrote to me and cited the deficiencies in plaintiff's response to its requests (Ex. G to Maldonado Decl. attached to Mot. for Sanctions). Shanachie then sought, pursuant to Rule 2.A of my Individual Practice Rules,*fn2 an informal conference to resolve the discovery dispute between Shanachie and plaintiff.

B. Harper's Discovery Requests

On July 22, 2010, Harper served interrogatories and requests for document production on plaintiff (Ex. C to Declaration of Melvin Reddick, Esq. in Support of Motion to Impose Sanctions, dated Feb. 17, 2011 ("Reddick Decl. attached to Mot. for Sanctions") (Docket Item 60)). Plaintiff did not respond to these discovery requests. On September 2, 2010, counsel for Harper called and subsequently wrote to plaintiff to confer about the matter and to inform plaintiff that if she did not respond to the discovery requests by September 10, 2010, Harper would ask the Court to compel plaintiff's response (Ex. D to Reddick Decl. attached to Mot. for Sanctions). Although plaintiff responded on September 7, 2010 and informed Harper's counsel that she would respond to the discovery requests by September 17, 2010, plaintiff did not respond on that date (Ex. E to Reddick Decl. attached to Mot. for Sanctions).

On September 21, 2010, counsel for Harper wrote to me regarding plaintiff's failure to respond and requested, pursuant to Rule 2.A of my Individual Practice Rules, an informal conference to resolve the discovery dispute between Harper and plaintiff (Ex. F to Reddick Decl. attached to Mot. for Sanctions).

C. Remaining Pertinent

Discovery Proceedings

On September 24, 2010, plaintiff filed her Rule 26(a)(1) disclosures. No documents were attached to those disclosures, and they largely repeated the allegations made in plaintiff's amended complaint (Ex. H to Maldonado Decl. attached to Mot. for Sanctions; see also Initial Disclosures (Docket Item 41)). On that date, plaintiff also (1) sent Shanachie a second copy of her earlier deficient responses to Shanachie's document requests (Ex. I to Maldonado Decl. attached to Mot. for Sanctions; see also Response to Shanachie Entertainment Corporation's First Request to Plaintiff for Production of Documents (Docket Item 42)) and (2) responded to Harper's interrogatories,*fn3 but not to his document requests (Ex. G to Reddick Decl. attached to Mot. for Sanctions; see also Plaintiff's Response to Vaughn Harper's First Set of Interrogatories to Plaintiff (Docket Item 40)).

To resolve the issues raised by counsel for Shanachie and Harper, I scheduled a telephonic discovery conference for October 18, 2010 (Ex. I to Reddick Decl. attached to Mot. for Sanctions). On that date, all parties appeared on the conference call at the designated time except plaintiff. My courtroom deputy attempted to call plaintiff, but was only able to reach her voicemail. In order to give plaintiff, who was and is proceeding pro se, an opportunity to respond to the claimed deficiencies in her discovery responses, I advised defendants that I would issue an Order to Show Cause.

Later, during the afternoon of October 18, 2010, I received a letter from plaintiff, which was dated October 5, 2010, stating that she preferred an in-court conference to resolve the outstanding discovery disputes (Ex. J to Reddick Decl. attached to Mot. for Sanctions; see also Letter of Plaintiff dated Oct. 5, 2010 (Docket Item 43)). I held the in-person conference sought by plaintiff on October 29, 2010; plaintiff, however, did not appear. Because plaintiff had received notice of the conference, I proceeded without her. As a result of this conference, I issued an Order directing plaintiff to (1) produce all non-privileged documents requested by Shanachie and to provide a schedule of all documents withheld on the ground of privilege and (2) provide responses to the interrogatories served by Harper, as well as produce all non-privileged documents requested by Harper and provide a schedule of all documents withheld on the grounds of privilege (Order dated Oct. 29, 2010 (Docket Item 45)).

Plaintiff did not respond in any way to my Order, and counsel for Shanachie and Harper both requested another informal conference (Ex. M to Maldonado Decl. attached to Mot. for Sanctions). I held the requested conference on December 10, 2010. Plaintiff admitted having received my October 29, 2010 Order but stated that she was confused concerning her discovery obligations and the seemingly conflicting schedules set by myself and Judge Pauley. She then requested additional time to seek counsel to assist her in responding to the discovery requests. I advised plaintiff that she was already in violation of two Court Orders and the potential consequences of such violations. I also explained to plaintiff that she was and is always free to seek the assistance of counsel, but that this action, which she had commenced nearly two and one-half years prior to that conference, must go on regardless of whether she has counsel. With a strong warning of the consequences that could result if plaintiff failed to respond to the discovery requests, I granted plaintiff a final extension of time to comply with my October 29, 2010 Order (Order dated Dec. 10, 2010 (Docket Item 49)).

Plaintiff served revised responses to the discovery requests on or about December 29, 2010 (Ex. O to Maldonado Decl. attached to Mot. for Sanctions; Ex. P to Reddick Decl. attached to Mot. for Sanctions). These responses, however, failed to comply with my October 29, 2010 Order in that plaintiff continued to assert privilege in response to nearly every document request, suggesting that plaintiff was persisting in her attempt to withhold documents until trial.*fn4 Counsel for the Moving Defendants jointly requested yet another informal conference on the basis of plaintiff's deficient revised responses (Ex. P to Maldonado Decl. attached to Mot. for Sanctions). The conference was scheduled for January 28, 2011.

On January 28, 2011, approximately twenty minutes before the scheduled start time of the conference, my staff received a call from someone who identified herself as plain-tiff's friend. This person stated that plaintiff had become ill on her way to the courthouse and would be unable to attend the conference.*fn5 During the conference, I informed counsel that I believed the best way to proceed was for defendants to make a formal Rule 37 motion. I memorialized this by an Order dated January 31, 2011 (Order dated Jan. 31, 2011 (Docket Item 52)).

On or about January 31, 2011, plaintiff served further revised discovery responses, but these responses also failed to comply with my October 29, 2010 Order. Specifically, although plaintiff did produce some new documents, her revised responses clearly indicated that she was still withholding documents that she intended to use at trial.*fn6

The Moving Defendants subsequently served a motion seeking sanctions against plaintiff on February 17, 2011 (Docket Item 58). The motion for sanctions was granted on December 12, 2011 (Docket Item 65).

D. Fee Applications

By papers dated December 22, 2011, Balber Pickard seeks to recover the sum of $17,497.50 in fees and $499.53 in costs (Declaration of Roger J. Maldonado in Support of Shanachie Entertainment Corporation's Request for Reimbursement of its Reasonable Expenses and Attorneys' Fees, dated Dec. 22, 2011 ("Maldonado Decl.") (Docket Item 67), ¶ 37). This figure is comprised of the following: (1) $6,770.50 in fees and $188.67 in costs for the period from May 24, 2010 through October 29, 2010; (2) $4,661.00 in fees and $126.24 in costs for the period from November 1, 2010 through January 31, 2011 and (3) $6,066.00 in fees and $184.62 in costs for February 2011 (Maldonado Decl. ¶¶ 6-8, see also Maldonado Decl. at 4-7). The first two time periods cover Balber Pickard's efforts to compel plaintiff to respond to Shanachie's discovery requests; the third time period covers Balber Pickard's efforts in preparing, serving and filing the motion for sanctions against plaintiff (Maldonado Decl. ¶¶ 4-8).

In support of its fee application, Balber Pickard has submitted billing records (see Exs. A-E to Maldonado's Decl.). On the basis of these records, Balber Pickard contends the following. From May 24, 2010 through October 29, 2010, (1) Roger J. Maldonado, Esq. spent 16 hours working on the matter and seeks to compensated at an hourly rate of $395.00 (Maldonado Decl. ¶¶ 11, 18-19) and (2) Jane Y. Ginns, Esq. spent 1.7 hours working on the matter and seeks to be compensated at an hourly rate of $265.00 (Maldonado Decl. ¶¶ 12, 18-19). From November 1, 2010 through January 31, 2011, Maldonado spent 11.8 hours working on the matter and seeks to be compensated at his same hourly rate of $395.00 (Maldonado Decl. ¶¶ 11, 22-23). In February 2011, (1) Maldonado spent 10.8 hours working on the matter and again seeks to be compensated at his $395.00 hourly rate (Maldonado Decl. ¶¶ 11, 26-27) and (2) Ginns spent 6.8 hours working on the matter and seeks to be compensated at her same hourly rate of $265.00 (Maldonado Decl. ¶¶ 12, 26-27).

In papers dated January 11, 2012, Melvin L. Reddick, Esq. seeks to recover the sum of $6,060.00 in fees; Reddick does not seek any costs (see Declaration of Melvin L. Reddick in Support of Vaughn Harper's Request for Reinbursement [sic] of his Attorney's Fees, dated Jan. 11, 2012 ("Reddick Decl.") (Docket Item 70), ΒΆΒΆ 15-17). Reddick breaks down his overall figure in the same manner as Balber Pickard, seeking (1) $2,000.00 for the period from July 6, 2010 through October 29, 2010; (2) $2,500.00 for ...


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