United States District Court, E.D. Michigan, Southern Division
CEAYA L. THOMAS, on behalf of Herself and as Personal Representative of the Estate of DeMarlon Cenaka Thomas, Plaintiff,
v.
BANNUM PLACE OF SAGINAW, Defendant.
Matthew F. Leitman District Judge
MEMORANDUM OPINION AND ORDER VACATING THE
COURT’S PRIOR DISCRETIONARY AWARD OF FEES (DE 41) AND
DENYING PLAINTIFF’S REQUEST FOR COSTS AND
ATTORNEY’S FEES (DE 44)
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
I.
Prologue
It
happened that a dog had got a piece of meat and was carrying
it home in his mouth to eat it in peace. Now on his way home
he had to cross a plank laying across a running brook. As he
crossed, he looked down and saw his own shadow reflected in
the water beneath. Thinking it was another dog with another
piece of meat, he made up his mind to have that also. So he
made a snap at the shadow in the water, but as he opened his
mouth the piece of meat fell out, dropping into the water and
was never seen more.
“The
Dog and the Shadow, ” Aesop’s
Fables.[1]
II.
Procedural History
On
December 3, 2018, Plaintiff filed a motion to compel
discovery from Defendant pursuant to Fed.R.Civ.P. 37. (DE
26.) After a hearing held on February 5, 2019, the Court
granted the motion in part and denied the motion in part. (DE
41.) As Defendant correctly notes in its objection to the
bill of costs, the Court observed at the hearing that
Plaintiff’s motion had been “over-briefed”
and that the Court had stopped reading the 10-page reply
brief (DE 33) at page 7, when Plaintiff hit the maximum
number of pages allowed under the Court Rules. (DE 47 at 3.)
See E.D. Mich. R. 7.1(d)(3)(B). With a 28-page
motion, 25-page brief and index of authorities containing 41
separate case citations, all in support of compelling more
complete discovery responses, the characterization fits.
(See DE 47 at 4, n. 2.) Towards the conclusion of
its Order, the Court stated as follows:
If an underlying discovery motion is granted in part and
denied in part, as here, the applicable rule provides that
the Court may award the payment of reasonable
expenses for the motion. Fed.R.Civ.P. 37(a)(5)(C).
Consistent with the findings stated on the record, Plaintiff
is entitled to her reasonable expenses incurred in
bringing her motion to compel, because the motion was
necessary, Defendant’s failure to timely respond to
discovery was not substantially justified, and there are no
other circumstances that make an award of expenses unjust.
Because the motion was granted in part, with Plaintiff
obtaining nearly all of the relief sought, the Court will
apportion the award and reduce it by fifteen percent, after
calculating the total reasonable attorney fee
associated with this motion.
Plaintiff shall submit a bill of costs, or stipulated bill of
costs, by February 19, 2019 for time incurred “for the
motion, ” including time drafting the instant motion to
compel, reply, and the joint statement, and time traveling to
and from and spent attending the hearing (as to the hearing,
for attorney Julie Hurwitz only).
(DE 41
at 8-9 (italics added; bold type in original).)
Plaintiff
dutifully submitted a bill of costs on February 19, 2019. (DE
44.) She unabashedly requested $37, 972.50 in fees and
$437.47 in costs, amounting to a whopping total of $38,
409.97 for work performed in connection with
Plaintiff’s straightforward, uncomplicated motion (a
substantial portion of which was a chronological history of
the parties’ dealings and questions and answers copied
and pasted from discovery responses), supporting brief, reply
brief, meet and confer conference and joint statement of
resolved and unresolved issues. (DE 44-1.) Attendance at the
hearing only required 0.3 hours of travel time, apparently
because counsel’s office is in downtown Detroit.
(Id.) Preparation for this routine motion hearing
apparently took another 7 hours of attorney time, with an
additional 3.35 hours requested for preparation of the bill
of costs itself (Id.), which was not awarded by the
Court in the first instance. Requested billing rates range
from $250/hour in associate time to $450/hour in partner
time, the latter apparently necessary because counsel has
been “a Super Lawyer for more than ten years.”
(DE 44 at 3.) All this for a motion that was not entirely
successful and significant portions of which got resolved
prior to the hearing. (See DE 41, passim.)
Indeed, motions for summary judgment, which dispose of entire
cases, often cost less than what Plaintiff now requests in
connection with this effort to compel responses to two sets
of discovery requests.
III.
Legal Analysis
In its
objection to the bill of costs, Defendant points out that
Plaintiff’s request for fees is grossly excessive. (DE
47 at 8.) Defendant is correct, though perhaps understated.
In support, Defendant quotes from my prior opinion in
Martinv. Lincor Eatery, No. 2:17-11634,
2018 WL 4658996 (E.D. Mich. Sept. 28, 2018), wherein I found
that a $14, 676.50 bill for a routine discovery motion, less
than ...