Thomas v. Bannum Place of Saginaw

          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 ...