Conning v. Halpern

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

*

ANDREW SCOTT CONNING, *

*

Plaintiff, *

*

v. * Civil Action No. 18-cv-12336-ADB

*

JACK HALPERN and CJKI DICTIONARY *

INSTITUTE, INC., *

*

Defendants. *

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTIONS FOR FEES AND COSTS

BURROUGHS, D.J.

Currently before the Court are Plaintiff Andrew Scott Conning’s (“Plaintiff”) motions to

recover attorneys’ fees and costs incurred in connection with two successful discovery-related

motions. [ECF Nos. 73, 74]. Defendants Jack Halpern and CJKI Dictionary Institute, Inc.

(“CJKI,” and, together with Halpern, “Defendants”) oppose the motions and dispute the amounts

requested. [ECF No. 77]. For the reasons set forth below, the first motion, [ECF No. 73], is

GRANTED and the second motion, [ECF No. 74], is GRANTED in part.

I. BACKGROUND

The Court assumes the parties’ familiarity with the facts, and in any event, a complete

factual background is unnecessary for resolution of the instant motions. In short, Plaintiff and

Defendants had a business relationship that soured. [ECF No. 70 at 2]. Plaintiff commenced an

arbitration against Defendants in Japan and obtained an arbitral award. [Id. at 2–3]. Plaintiff

then initiated this action seeking the full payment of the arbitral award and asserting a number of

state-law claims. [ECF No. 1-2 at 14–37].

Discovery in this case has been contentious, mostly because of Defendants’ dilatory and

obstructionist tactics. See, e.g., [ECF No. 63, 65]. On May 19, 2020, Plaintiff moved to compel

responses to certain written discovery requests, [ECF No. 52 (motion to compel Halpern); ECF

No. 54 (motion to compel CJKI)], and on July 20, 2020, the Court granted the motions, [ECF

No. 63]. On September 22, 2020, Plaintiff moved to compel certain deposition testimony from

Halpern, [ECF No. 70], and on September 29, 2020, the Court granted that motion as well, [ECF

No. 72].

Plaintiff filed the instant motions on October 2, 2020: the first seeks fees and costs in

connection with the September 22, 2020 motion to compel, [ECF No. 73], and the second seeks

fees and costs in connection with the May 19, 2020 motions to compel, [ECF No. 74]. On

October 12, 2020, Defendants opposed both motions and disputed the amount of fees and costs

requested, arguing that Plaintiff is entitled to far less than he seeks. [ECF No. 77]. Plaintiff

replied on November 2, 2020, reducing his request in light of Defendants’ arguments. [ECF No.

80].

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 37, if the Court grants a motion to compel, it

must, after giving an opportunity to be heard, require the party or deponent whose

conduct necessitated the motion, the party or attorney advising that conduct, or both

to pay the movant’s reasonable expenses incurred in making the motion, including

attorney’s fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the

disclosure or discovery without court action;

(ii) the opposing party’s nondisclosure, response, or objection was

substantially justified; or

(iii) other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A). In the First Circuit,

courts follow the so-called lodestar method for calculating reasonable attorneys’

fees. The lodestar method involves multiplying the number of hours productively

spent by a reasonable hourly rate to calculate a base figure.

In fashioning the lodestar, the first step is to calculate the number of hours

reasonably expended by the attorneys for the prevailing party, excluding those

hours that are excessive, redundant, or otherwise unnecessary. [T]he court has a

right—indeed, a duty—to see whether counsel substantially exceeded the bounds

of reasonable effort.

After determining the number of hours reasonably expended, the second step in

calculating the lodestar requires a determination of a reasonable hourly rate—a

determination that is benchmarked to the prevailing rates in the community for

lawyers of like qualifications, experience, and specialized competence. In

determining a reasonable hourly rate, a court must consider the type of work

performed, who performed it, the expertise that it required, and when it was

undertaken. The moving party bears the burden of establishing an attorney’s level

of skill and experience, and when that party fails to provide documentation as to

the attorney’s qualifications, a court may reduce the hourly rate.

After determining the reasonable number of hours and hourly rate, the court may

adjust the lodestar upward or downward based on a number of factors. Those

factors include: (1) the time and labor required; (2) the novelty and difficulty of the

questions; (3) the skill requisite to perform the legal service properly; (4) the

preclusion of employment by the attorney due to acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time limitations

imposed by the client or the circumstances; (8) the amount involved and the results

obtained; (9) the experience, reputation, and ability of the attorneys; (10) the

undesirability of the case; (11) the nature and length of the professional relationship

with the client; and (12) awards in similar cases.

Day v. Gracy, No. 18-cv-10396, 2019 WL 3753947, at *2–3 (D. Mass. Aug. 8, 2019) (alteration

in original) (internal citations and quotation marks omitted).

III. DISCUSSION

A. Awarding Fees and Costs Is Appropriate in Connection with All Motions to

Compel

Prior to filing each motion to compel, Plaintiff attempted in good faith to resolve the

parties’ dispute without the Court’s intervention. See [ECF No. 52 at 3 (May 19, 2020 motion to

compel Halpern); ECF No. 54 at 3 (May 19, 2020 motion to compel CJKI); ECF No. 70 at 15

(September 22, 2020 motion)]. Defendants do not argue that their positions in connection with

these motions were substantially justified. See generally [ECF No. 77]. With regard to the May

19, 2020 motions to compel, the Court concluded that Defendants’ discovery responses were

“plainly insufficient” and granted Plaintiff’s motions in their entirety. [ECF No. 63]. The Court

also granted the September 22, 2020 motion to compel in its entirety while chastising Defendants

for their conduct throughout discovery. [ECF No. 72]. Accordingly, the Court finds that

Defendants’ positions with respect to these motions were not substantially justified. Further,

Defendants have not identified any circumstances that would make an award of expenses unjust,

see generally [ECF No. 77], and the Court cannot independently identify one. Thus, pursuant to

Federal Rule of Civil Procedure 37, the Court must award Plaintiff “reasonable expenses

incurred in making the motion[s], including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A).

Defendants make six general arguments regarding the reasonableness of the fees sought,

[ECF No. 77 at 3–5], and also make various objections to specific time entries in Plaintiff’s

schedules of fees, [ECF Nos. 77-1, 77-2]. Because the general arguments are applicable to both

motions, the Court will summarize and address them here.

In essence, Defendants argue that: (1) Plaintiff seeks fees for work that was not

sufficiently tied to the relevant motions, [ECF No. 77 at 3]; (2) too many attorneys worked on

the motions, [id. at 3–4]; (3) the number of hours billed is excessive and reflects duplicative

work, [id. at 4]; (4) Plaintiff seeks fees for his attorneys’ internal communications, [id.]; (5) the

billing entries are insufficiently detailed, [id.]1; and (6) the billing rates reflected in the fee

1 In a subsequent filing, Plaintiff added detail to the entries. [ECF No. 80 at 10–29].

requests are too high, [id.].2 Putting aside for the moment fees for unrelated work (first

argument) and hours billed (third argument), with regard to their second argument, Defendants

point to no authority establishing a limitation on the number of attorneys that can work on a

matter for purposes of a fee request. The Court will not disallow reasonable fees solely because

they reflect the work of more than one attorney. See Banco Popular de P.R. v. Gilbert, 424 F.

App’x 151, 154 n.2 (3d Cir. 2011) (“Of course, it will often be appropriate for district courts, in

their discretion, to disallow recovery of fees incurred because a party has elected to have two

lawyers do work that might have been done by only one. Situations nonetheless exist in which

recovery for the work of multiple lawyers would be appropriate, even in routine matters.”).

Similarly, as to Defendants’ fourth argument, they point to no authority for the

proposition that internal communications are non-compensable, and the Court sees no reason to

impose a blanket ban on recovering for intrafirm communications. See Banco Popular, 424 F.

App’x at 154 n.2 (“It is also proper for the attorneys in a firm to confer concerning legal issues.

Indeed, that conferring may save hours of research.”). Finally, as to Defendants’ last argument

which concerns hourly rates, the Court finds that Plaintiff’s attorneys’ hourly rates, which range

from $150–$200, see [ECF No. 80 at 10–29], are reasonable. In connection with discovery

disputes, courts in this district routinely award attorneys’ fees based on similar (or higher) hourly

rates. See, e.g., Day, 2019 WL 3753947, at *4 (finding $300 hourly rate reasonable); Barth v.

City of Peabody, No. 15-cv-13794, 2019 WL 8918791, at *3 (D. Mass. July 24, 2019) ($225);

Briarwood Thirteen LLC v. Travelers Prop. Cas. Co. of Am., No. 14-cv-30074, 2019 WL

8128930, at *3 (D. Mass. Jan. 29, 2019) ($300); Coons v. A.F. Chapman Corp., No.

2 In his subsequent filing, Plaintiff reduced the hourly rates he used in calculating his request.

[ECF No. 80 at 3].

03-cv-11900, 2009 WL 10728766, at *3–4 (D. Mass. Apr. 27, 2009) ($220), aff’d sub nom.

Coons v. Indus. Knife Co., Inc., 620 F.3d 38 (1st Cir. 2010); cf. United States v. One Star Class

Sloop Sailboat built in 1930 with hull no. 721, named “Flash II”, 546 F.3d 26, 40 (1st Cir. 2008)

(“Thus, the rate that private counsel actually charges for her services, while not conclusive, is a

reliable indicium of market value.”); [ECF No. 80 at 3 (noting that Plaintiff’s counsel’s firm

ordinarily charges $300 per hour but provided a discount here)].

B. Fees and Costs in Connection with May 19, 2020 Motions to Compel

Plaintiff seeks $16,595.00 in costs and fees associated with his successful May 19, 2020

motions to compel. [ECF No. 80 at 4]. This sum is based on 99.4 hours multiplied by an hourly

rate of either $150 or $200 depending on the attorney. [Id. at 10–22]. The initial time entry is

from March 6, 2020, seventy-four days before the motions were filed, and the final entry is from

June 16, 2020,3 the date that Plaintiff filed a letter requested by the Court regarding the motions.

[Id. at 10–19]. Four attorneys appear in the time records: Shaun Keough, Ken Parker, Nathaniel

Lichtin, and Jennifer Wilson. [Id. at 10–22].

The Court begins by calculating the number of hours reasonably expended by Plaintiff’s

attorneys in making the motions. See Day, 2019 WL 3753947, at *2; Fed. R. Civ. P.

37(a)(5)(A). First, Plaintiff seeks to recover fees that were not incurred in making the May 19,

2020 motions. For instance, he seeks fees for 2 hours that Ms. Wilson spent on March 6, 2020

drafting a “memorandum detailing inefficiencies with Defendant’s responses to interrogatories.”

[ECF No. 80 at 10]. As another example, he seeks fees for 2.8 hours that Mr. Parker spent on

March 18, 2020 editing a letter to Defendants regarding their discovery deficiencies, emailing

3 Plaintiff initially requested fees for work completed in August and September 2020 but

subsequently amended his request to omit the work completed after June 16, 2020. [ECF No. 80

at 20–22].

with Ms. Wilson regarding the same, and speaking with Plaintiff on the phone. [Id. at 12]. That

work, however, would likely have been done regardless of the May 2020 motions to compel, and

in any event, was not done in connection with them. See Coons, 2009 WL 10728766, at *6

(“Although plaintiffs are responsible for the fees and expenses caused by the untimely

designations, they are not responsible for the fees defendants would have incurred anyway.”

(internal citations and quotation marks omitted)); cf. Mosaid Techs. Inc. v. Samsung Elecs. Co.,

224 F.R.D. 595, 598 (D.N.J. 2004) (“Many of the fees would have been incurred in any event,

and I therefore disallow these. For example, the firm spent many hours ‘reviewing’ documents

actually produced by defendants. While such review may have been tangentially related to the

sanctions motion, plaintiff most likely would have performed this work irrespective of the instant

dispute.”). Work done in connection with discovery and the meet-and-confer process, including

letters to opposing counsel and memoranda regarding deficiencies with Defendants’ discovery

responses, is not work done on a subsequent motion to compel. That a motion to compel is

ultimately filed does not transform all of that work into motion-related work compensable under

Federal Rule of Civil Procedure 37. As a result, the Court reduces the number of total hours

from 99.4 hours to 61.8 hours to reflect the 37.6 hours spent on tasks insufficiently linked to the

May 2020 motions to compel. See [ECF No. 80 at 10 (4.8); id. at 11 (5.5 hours); id. at 12 (8

hours); id. at 13 (4.5 hours); id. at 14 (5.9 hours); id. at 15 (8.9 hours)4].

4 On April 6, 2020, Ms. Wilson billed 6.6 hours for “research support for the arguments that

Defendants must provide certain discovery responses; draft memorandum summarizing the legal

standards; draft motion to compel.” [ECF No. 80 at 15]. With respect to the first two tasks

listed, there is insufficient detail to determine whether they were done in connection with the

motions to compel. Because there is no apportionment of the 6.6 hours as between the three

tasks, the Court assumes that Ms. Wilson spent 2.2 hours on each. Accordingly, of the 6.6 hours

spent, only the 2.2 hours spent “draft[ing] motion to compel” are compensable.

Notwithstanding Defendants’ objections, the Court finds the remainder of the time entries

in Plaintiff’s revised fee schedule to be reasonable. Accordingly, the Court concludes that 61.8

hours were reasonably expended. Though the motions to compel did not raise novel or

particularly complex legal issues, there were many deficiencies with Defendants’ discovery

responses and, for that reason, there was undoubtedly a significant amount of work to be done in

drafting and editing the briefs (and accompanying exhibits) that Plaintiff filed in support of his

motions. Applying the attorney-specific hourly rates, which the Court has already concluded are

reasonable, the lodestar is $10,260.00. Even assuming that 61.8 hours was a lot of time to spend

on these motions to compel, the Court views the overall amount of $10,260.00 to prepare such

motions as reasonable in light of the circumstances and therefore declines to discount it further.

Day, 2019 WL 3753947, at *3 (“After determining the reasonable number of hours and hourly

rate, the court may adjust the lodestar upward or downward based on a number of factors.”)

(emphasis added).

C. Fees and Costs in Connection with September 22, 2020 Motion to Compel

Plaintiff seeks $5,382.10 in costs and fees associated with his successful September 22,

2020 motion to compel. [ECF No. 80 at 4]. This sum is based on 21.2 hours multiplied by

hourly rates of either $150 or $200 as well as $487.10 for court-reporting costs associated with

the deposition scheduled for September 15, 2020. [Id. at 26–29]. The initial time entry is from

September 15, 2020, the day of the deposition, and the final entry is from September 22, 2020,

the date of the motion. [Id. at 26–29]. Mr. Keough, Mr. Parker, and Mr. Lichtin appear in the

time records. [Id.].

Notwithstanding Defendants’ objections, the Court finds Plaintiff’s revised schedule of

fees, [ECF No. 80 at 24–29], to be reasonable. Accordingly, the Court concludes that 21.2 hours

were reasonably expended. Although Plaintiff’s motion to compel deposition testimony did not

involve particularly complex or nuanced legal arguments, the Court recognizes that preparing

any brief (and the accompanying exhibits and declarations) takes time and careful attention to

detail. Applying the attorney-specific hourly rates (and adding the $487.10 in court-reporting

costs, to which Defendants do not object), the lodestar is $5,382.10. The Court views this

amount as reasonable in light of the circumstances and therefore declines to adjust it. Day, 2019

WL 3753947, at *3.

D. Liability

Rule 37 provides that the Court may require “the party or deponent whose conduct

necessitated the motion [to compel], the party or attorney advising that conduct, or both” to pay

reasonable expenses. Fed. R. Civ. P. 37(a)(5)(A). Neither party has discussed whether

Defendants or their counsel (or both) should be liable for Plaintiff’s fees and costs. See

generally [ECF Nos. 73, 74, 77, 80]. “Imposing sanctions against a party and counsel jointly and

severally is appropriate where it is unclear based on the record which is less blameworthy than

the other.” Twin Falls NSC, LLC v. S. Idaho Ambulatory Surgery Ctr., LLC, No. 19-cv-00009,

2020 WL 5523384, at *17 (D. Idaho Sept. 14, 2020) (citing In re George, 322 F.3d 586, 592 (9th

Cir. 2003)); see also Zhao v. United States, No. 06-cv-00106, 2010 5333098, at *5 (W.D.N.Y.

Dec. 20, 2010). As the record stands, it is unclear, as between Defendants and their counsel,

who is at fault for Defendants’ failure to provide adequate responses to Plaintiff’s written

discovery requests or for Halpern’s failure to answer relevant questions at his deposition. On the

one hand, an experienced attorney like Mr. Brown, who is a partner at one of the larger firms in

Texas, knows or certainly should have known, for instance, that Federal Rule of Civil Procedure

33 requires that each interrogatory be answered separately and fully and not by simply referring

to other documents or pleadings, see [ECF No. 63], and that a relevance objection is generally an

insufficient basis for instructing a deponent not to answer a question (especially after electing not

to seek a protective order prior to the deposition), [ECF No. 72 at 5–8]. On the other hand, the

Court recognizes that attorneys do not typically act without direction from their clients. Under

these circumstances, the Court concludes that the imposition of joint and several liability is

appropriate.

IV. CONCLUSION

Accordingly, for the reasons noted above, Plaintiff’s first motion, [ECF No. 73], is

GRANTED and his second motion, [ECF No. 74], is GRANTED in part. His total requested

fees and costs award is reduced to $15,642.10, consisting of $10,260.00 in connection with the

May 19, 2020 motions to compel and $5,382.10 in connection with the September 22, 2020

motion to compel. Defendants and their counsel are jointly and severally liable for paying the

$15,642.10 award.

SO ORDERED.

January 4, 2021 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE