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North Atlantic Operating Co., Inc. v. Dunhuang Group

United States District Court, E.D. Michigan, Southern Division

September 26, 2019

NORTH ATLANTIC OPERATING COMPANY, INC. and NATIONAL TOBACCO COMPANY, L.P., Petitioners,
v.
DUNHUANG GROUP d/b/a DHgate, DHPORT, DHLINK, and DHPAY, Respondents.

          Linda V. Parker Judge

          OPINION AND ORDER GRANTING IN PART and DENYING IN PART PETITIONERS’ MOTION FOR AWARD OF COSTS AND ATTORNEYS’ FEES AS TO DUNHUANG GROUP AND SFTD (DE 55)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. OPINION

         A. Background

         The history of this case is laid out in great detail in this Court’s March 19, 2019 opinion and order. (DE 44 at 1-8.) Here, it is sufficient to repeat that the matter at hand began with discovery sought by way of a Fed.R.Civ.P. 45 subpoena in an underlying, anti-counterfeiting action (Case No. 4:17-cv-10964-LVP-APP (E.D. Mich.)), which efforts materialized into Plaintiffs’ motion to compel, which initiated the instant, miscellaneous lawsuit.

         On October 11, 2018, I granted the motion to compel and required that respondent Dunhuang Group pay fees and costs. (DE 12.)[1] On December 19, 2018, Plaintiffs filed a motion to hold third party Dunhuang Group in contempt for “Dunhuang Group’s Willful and Deliberate Refusal to Comply With the Court’s Order.” (DE 17 at 17.) Shiji Fuxuan Technology Development (Beijing) Limited (SFTD) filed a motion to vacate, which I denied on March 19, 2019. (DEs 26, 44.)

         On May 17, 2019, Judge Parker entered an opinion and order granting Petitioners’ motion to hold third-party Dunhuang Group in contempt and denying Respondent’s motion for reconsideration of the Court’s March 19, 2019 order.

         (DE 52.) Of particular import, Judge Parker ordered:

. . . that “Dunhuang Group” shall pay North Atlantic’s costs and attorneys’ fees associated with the Motion to Compel [DE 1] and Motion for Contempt [DE 17]. North Atlantic shall file a motion for award of cost and attorneys’ fees containing evidence of such subject to modification and approval by the Court as it so deems just and proper.

(DE 52 at 15.)

         B. Instant Motion

         Currently before this Court is North Atlantic Operating Company, Inc. and National Tobacco Company, L.P.’s (“Petitioners’ / Plaintiffs’”) motion for an award of costs and attorneys’ fees as to respondent Dunhuang Group and movant SFTD. (DE 55.) Petitioners support their motion with, inter alia, affidavits from two of their attorneys. (DEs 56, 57; see also DE 59.) In sum, Plaintiffs seek reimbursement in the amount of $128, 271.83. (DE 55 at 2, 4, 14.)

         SFTD filed a response. (DE 65 at 1-20.) SFTD attaches 126 pages of exhibits, which include: (a) an itemization chart (DE 65 at 21-62); (b) a chart of timekeepers (attorney / paralegal), their years of practice and their rate (DE 65 at 63-64); (c) SFTD counsel’s declaration (DE 65 at 65-66); (d) unpublished cases (DE 65 at 67-100); (e) the State Bar of Michigan’s 2007 Economics of Law Practice Summary Report (DE 65 at 101-132); and, (f) the State Bar of Michigan’s 2017 Economics of Law Practice Attorney Income and Billing Rate Summary Report (DE 65 at 133-146). In sum, SFTD argues that Plaintiffs’ request for fees “overreaches, ” and Plaintiffs’ counsels’ rates “are not reasonable.” (DE 65 at 12-19.)

         Petitioners filed a reply, wherein they argue that SFTD’s characterization of their request for fees is “conclusory, self-serving, and arbitrary[, ]” and that the State Bar of Michigan’s 2017 Economics of Law Practice Report “should NOT be applied to out-of-state and in-state counsel.” (DE 66; see also DE 67.)

         Judge Parker referred this motion to me for hearing and determination. (DE 60.) The hearing on this motion was held on August 27, 2019. Attorneys Lyndsay S. Ott and Adam E. Urbanczyk appeared in person. Following oral argument, I took the motion under advisement.

         C. Standard

         As made clear by the hearing notice, I have construed Judge Parker’s May 17, 2019 order “as based on Fed.R.Civ.P. 37(b)(2)(A)(vii)[.]” (DE 52 at 15, DE 69; see also DE 65 at 10, 14.) This particular rule concerns sanctions for not obeying a discovery order, including ‚Äútreating as contempt of court the failure to ...


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