“The proper calculation of an attorney’s fee award involves a three-step process.”
How later courts described this case
- “The proper calculation of an attorney’s fee award involves a three-step process.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
RAMACO RESOURCES, LLC,
Plaintiff,
v. Case No.: 2:19-cv-00703
FEDERAL INSURANCE COMPANY, and
ACE AMERICAN INSURANCE COMPANY,
Defendants.
MEMORANDUM OPINION and ORDER
On September 11, 2020, the undersigned United States Magistrate Judge
granted Plaintiff’s Motion to Deem Requests for Admission Admitted or, in the
Alternative, to Compel Adequate Responses. (ECF No. 157). The parties were ordered
to brief the matter of reasonable fees and costs, which Plaintiff requested. The parties
have since submitted their materials, and the issues are fully briefed. (ECF Nos. 182,
190, 193). For the reasons that follow, the Court GRANTS Plaintiff’s Petition for
Attorneys’ Fees and Costs, (ECF No. 182), in part, as set forth below. Defendants are
hereby ORDERED to pay Plaintiff the sum of Eight Thousand Three Hundred
Twenty Eight Dollars ($8,328.00) in reimbursement of reasonable attorneys’
fees. This payment shall be made in full within thirty (30) days of the date of this
Order.
I. RELEVANT FACTS
Plaintiff Ramaco Resources, LLC, (“Ramaco”) owns a coal processing plant.
After a suspended hopper collapsed inside of a silo at its plant, Ramaco submitted an
insurance claim for its losses to its insurer, Defendant Federal Insurance Company
(“Federal”), which utilized employees of Defendant Ace American Insurance Company,
to perform claims handling and adjustment. (ECF Nos. 14 at 1, 199 at 4, 199 at 4 n.2).
Federal hired an engineering firm, Wiss, Janney, Elstner Associates (“WJE”), to
investigate the cause of the collapse. (ECF No. 199 at 4). Upon WJE’s report, Federal
wrote Ramaco a letter, stating that it was denying coverage for the claim because
Ramaco’s insurance policy excluded damage caused by: (1) faulty, inadequate, or
defective planning, design, materials, or maintenance; (2) wear and tear or
deterioration; and (3) rust, oxidation, corrosion, or discoloration. (ECF No. 199-2, 4-
7).
Thereafter, Ramaco filed suit, alleging bad faith, breach of contract, and
violations of the West Virginia Unfair Trade Practices Act, and Defendants removed
the action to this Court based on diversity jurisdiction. (ECF No. 1). In the course of
discovery, Ramaco served requests for admission on Defendants. See (ECF No. 132 at
2). Fifteen of the requests asked Defendants to admit or deny whether Federal
determined that certain policy exclusions that were referenced in Defendants’
affirmative defenses, such as “acts or omissions;” “business errors;” “inherent
vice/latent defect;” “planning, design, materials, or maintenance;” or “wear and tear,”
caused Ramaco’s loss. (Id.). Defendants objected to the requests, stating that the
requests “conflated factual determinations with legal defenses and the application of
the policy and the law to facts and factual determinations.” (ECF No. 131-3 at 5-20).
Defendants further responded that the factual determination was that the cause of loss
was corrosion, but they explained that certain other policy provisions were implicated
by that cause of loss. (Id.).
Ramaco filed a motion to deem the requests for admission admitted or, in the
alternative, to compel adequate responses to the fifteen requests. (ECF No. 131). In
reviewing the motion, the Court agreed with Ramaco that Defendants’ longwinded
responses did not comply with Rule 36 of the Federal Rules of Civil Procedure (“Rule
36”). (ECF No. 157). However, the Court declined to deem the requests admitted and
instead ordered Defendants to provide unambiguous responses to the discovery
requests. (ECF No. 157). Ramaco sought the reimbursement of its costs and fees
associated with pursuing the motion under Rule 37 of the Federal Rules of Civil
Procedure (“Rule 37”). (ECF No. 131). The Court ordered Ramaco to file “an affidavit
of reasonable fees and expenses incurred in making the motion to compel, as well as
any supportive documentation or argument to justify the amount of fees and expenses
requested.” (ECF No. 157 at 13). The undersigned also allowed Defendants to file a
response to Ramaco’s submission to “include any justification that would obviate
against an award of expenses.” (Id.). Ramaco was then permitted to file a reply
Defendants’ response. (Id.).
In response to the Court’s Order granting the motion to compel, Defendants
amended their responses to Ramaco’s fifteen requests. They admitted nine of the
requests, and they denied six of them, as follows:
REQUEST FOR ADMISSION NO. 21. Admit that Federal never
determined that “acts or omissions,” as that term is used in Your second
affirmative defense, was the cause of loss with respect to Ramaco’s
insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “acts or
omissions” as that phrase is used in the Federal Policy and
referenced in Federal’s affirmative defenses, encompassed the
factual determination that the cause of loss was corrosion. This
request is denied to the extent it seeks an admission inconsistent
with the foregoing. ACE American adopts the foregoing
objections, clarifications, and responses, as its objections,
clarifications, and responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 22. Admit that Federal never
determined that “business errors,” as that term is used in Your second
affirmative defense, was the cause of loss with respect to Ramaco’s
insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “business
errors” as that phrase is used in the Federal Policy and referenced
in Federal’s affirmative defenses, encompassed the factual
determination that the cause of loss was corrosion. This request is
denied to the extent it seeks an admission inconsistent with the
foregoing. American adopts the foregoing objections,
clarifications, and responses, as its objections, clarifications, and
responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 23. Admit that Federal never
determined that “Inherent Vice/Latent Defect,” as those terms are used
in Your third affirmative defense, was the cause of loss with respect to
Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “Inherent
Vice/Latent Defect” was the cause of loss, but Federal denies any
implication that the “Inherent Vice/Latent Defect” provisions of
the Federal Policy are inapplicable to the factual circumstances of
the November 5, 2018 failure event. This includes, without
limitation, because these provisions encompass or may
encompass the factual determination that the cause of loss was
corrosion, and these provisions encompass or may encompass one
or more factual allegations made by Ramaco about the November
5, 2018 failure event. This request is denied to the extent it seeks
an admission inconsistent with the foregoing. ACE American
adopts the foregoing objections, clarifications, and responses, as
its objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 24. Admit that Federal never
determined that “Planning, Design, Materials or Maintenance,” as that
term is used in Your fourth affirmative defense, was the cause of loss with
respect to Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “Planning,
Design, Materials or Maintenance”, as that phrase is used in the
Federal Policy and referenced in Federal’s affirmative defenses,
encompassed the factual determination that the cause of loss was
corrosion. This request is denied to the extent it seeks an
admission inconsistent with the foregoing. ACE American adopts
the foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 25. Admit that Federal never
determined that “wear and tear,” as that term is used in Your fifth
affirmative defense, was the cause of loss with respect to Ramaco’s
insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “wear and
tear” was the cause of loss, but Federal denies any implication that
the “Wear and Tear” provisions of the Federal Policy are
inapplicable to the factual circumstances of the November 5, 2018
failure event. This includes, without limitation, because these
provisions encompass or may encompass the factual
determination that the cause of loss was corrosion, and these
provisions encompass or may encompass one or more factual
allegations made by Ramaco about the November 5, 2018 failure
event. This request is denied to the extent it seeks an admission
inconsistent with the foregoing. ACE American adopts the
foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 28. Admit that, prior to the
commencement of this litigation, Federal had not determined that “acts
or omissions,” as that term is used in Your second affirmative defense,
was the cause of loss with respect to Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “acts or
omissions” as that phrase is used in the Federal Policy and
referenced in Federal’s affirmative defenses, encompassed the
factual determination that the cause of loss was corrosion. This
request is denied to the extent it seeks an admission inconsistent
with the foregoing. ACE American adopts the foregoing
objections, clarifications, and responses, as its objections,
clarifications, and responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 29. Admit that, prior to the
commencement of this litigation, Federal had not determined that
“business errors,” as that term is used in Your second affirmative defense,
was the cause of loss with respect to Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “business
errors” as that phrase is used in the Federal Policy and referenced
in Federal’s affirmative defenses, encompassed the factual
determination that the cause of loss was corrosion. This request is
denied to the extent it seeks an admission inconsistent with the
foregoing. ACE American adopts the foregoing objections,
clarifications, and responses, as its objections, clarifications, and
responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 30. Admit that, prior to the
commencement of this litigation, Federal had not determined that
“Inherent Vice/Latent Defect,” as those terms are used in Your third
affirmative defense, was the cause of loss with respect to Ramaco’s
insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “Inherent
Vice/Latent Defect” was the cause of loss, but Federal denies any
implication that the “Inherent Vice/Latent Defect” provisions of
the Federal Policy are inapplicable to the factual circumstances of
the November 5, 2018 failure event. This includes, without
limitation, because these provisions encompass or may
encompass the factual determination that the cause of loss was
corrosion, and these provisions encompass or may encompass one
or more factual allegations made by Ramaco about the November
5, 2018 failure event. This request is denied to the extent it seeks
an admission inconsistent with the foregoing. ACE American
adopts the foregoing objections, clarifications, and responses, as
its objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 31. Admit that, prior to the
commencement of this litigation, Federal had not determined that
“Planning, Design, Materials or Maintenance,” as that term is used in
Your fourth affirmative defense, was the cause of loss with respect to
Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “Planning,
Design, Materials or Maintenance”, as that phrase is used in the
Federal Policy and referenced in Federal’s affirmative defenses,
encompassed the factual determination that the cause of loss was
corrosion. This request is denied to the extent it seeks an
admission inconsistent with the foregoing. ACE American adopts
the foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 32. Admit that, prior to the
commencement of this litigation, Federal had not determined that “wear
and tear,” as that term is used in Your fifth affirmative defense, was the
cause of loss with respect to Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “wear and
tear” was the cause of loss, but Federal denies any implication that
the “Wear and Tear” provisions of the Federal Policy are
inapplicable to the factual circumstances of the November 5, 2018
failure event. This includes, without limitation, because these
provisions encompass or may encompass the factual
determination that the cause of loss was corrosion, and these
provisions encompass or may encompass one or more factual
allegations made by Ramaco about the November 5, 2018 failure
event. This request is denied to the extent it seeks an admission
inconsistent with the foregoing. ACE American adopts the
foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 34. Admit that, prior to the
commencement of this litigation, Federal had not obtained an expert
report that concluded that “acts or omissions,” as that term is used in
Your second affirmative defense, was the cause of loss with respect to
Ramaco’s insurance claim. For purposes of this request, “expert report”
includes any opinion provided by any person or entity retained by
Federal to investigate the cause of loss with respect to Ramaco’s
insurance claim, whether such opinion was rendered in writing or orally,
formally or informally.
RESPONSE: Federal objects to this request based on the
definition of “expert report” because the definition provided is not
the ordinary and customary use of the term “expert report” in
litigation and under and in connection with the Federal Rules,
specifically, and the request may accordingly result in a response
that is prejudicial and/or misleading and/or subject to
misinterpretation, and which may result in confusion. Federal
construes this request to mean “engineering report.” Responding
further, Federal objects to this request for admission because this
request conflates Federal’s factual determinations with Federal’s
legal defenses, and with the application of the Federal Policy, and
the law, to facts and to Federal’s factual determinations. This
request is accordingly incapable of being answered as
propounded, and is therefore objectionable. Federal’s factual
determination was that the cause of loss was corrosion, and the
three WJE engineers retained by Federal to investigate the
November 5, 2018 failure event determined the cause of loss was
corrosion. Federal admits that it therefore did not obtain an
engineering report that determined that “acts or omissions” as
that phrase is used in the Federal Policy and referenced in
Federal’s affirmative defenses, encompassed the factual
determination that the cause of loss was corrosion. This request is
denied to the extent it seeks an admission inconsistent with the
foregoing. ACE American adopts the foregoing objections,
clarifications, and responses, as its objections, clarifications, and
responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 35. Admit that, prior to the
commencement of this litigation, Federal had not obtained an expert
report that concluded that “business errors,” as that term is used in Your
second affirmative defense, was the cause of loss with respect to
Ramaco’s insurance claim. For purposes of this request, “expert report”
includes any opinion provided by any person or entity retained by
Federal to investigate the cause of loss with respect to Ramaco’s
insurance claim, whether such opinion was rendered in writing or orally,
formally or informally.
RESPONSE: Federal objects to this request based on the
definition of “expert report” because the definition provided is not
the ordinary and customary use of the term “expert report” in
litigation and under and in connection with the Federal Rules,
specifically, and the request may accordingly result in a response
that is prejudicial and/or misleading and/or subject to
misinterpretation, and which may result in confusion. Federal
construes this request to mean “engineering report.” Responding
further, Federal objects to this request for admission because this
request conflates Federal’s factual determinations with Federal’s
legal defenses, and with the application of the Federal Policy, and
the law, to facts and to Federal’s factual determinations. This
request is accordingly incapable of being answered as
propounded, and is therefore objectionable. Federal’s factual
determination was that the cause of loss was corrosion, and the
three WJE engineers retained by Federal to investigate the
November 5, 2018 failure event determined the cause of loss was
corrosion. Federal admits that it therefore did not obtain an
engineering report that determined that “business errors” as that
phrase is used in the Federal Policy and referenced in Federal’s
affirmative defenses, encompassed the factual determination that
the cause of loss was corrosion. This request is denied to the extent
it seeks an admission inconsistent with the foregoing. ACE
American adopts the foregoing objections, clarifications, and
responses, as its objections, clarifications, and responses to this
request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 36. Admit that, prior to the
commencement of this litigation, Federal had not obtained an expert
report that concluded that “Inherent Vice/Latent Defect,” as those terms
are used in Your third affirmative defense, was the cause of loss with
respect to Ramaco’s insurance claim. For purposes of this request,
“expert report” includes any opinion provided by any person or entity
retained by Federal to investigate the cause of loss with respect to
Ramaco’s insurance claim, whether such opinion was rendered in writing
or orally, formally or informally.
RESPONSE: Federal objects to this request based on the
definition of “expert report” because the definition provided is not
the ordinary and customary use of the term “expert report” in
litigation and under and in connection with the Federal Rules,
specifically, and the request may accordingly result in a response
that is prejudicial and/or misleading and/or subject to
misinterpretation, and which may result in confusion. Federal
construes this request to mean “engineering report.” Responding
further, Federal objects to this request for admission because this
request conflates Federal’s factual determinations with Federal’s
legal defenses, and with the application of the Federal Policy, and
the law, to facts and to Federal’s factual determinations. This
request is accordingly incapable of being answered as
propounded, and is therefore objectionable. Federal’s factual
determination was that the cause of loss was corrosion, and the
three WJE engineers retained by Federal to investigate the
November 5, 2018 failure event determined the cause of loss was
corrosion. Federal admits that it therefore did not obtain an
engineering report that determined that “Inherent Vice/Latent
Defect” was the cause of loss, but Federal denies any implication
that the “Inherent Vice/Latent Defect” provisions of the Federal
Policy are inapplicable to the factual circumstances of the
November 5, 2018 failure event. This includes, without limitation,
because these provisions encompass or may encompass the
factual determination that the cause of loss was corrosion, and
these provisions encompass or may encompass one or more
factual allegations made by Ramaco about the November 5, 2018
failure event. This request is denied to the extent it seeks an
admission inconsistent with the foregoing. ACE American adopts
the foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 37. Admit that, prior to the
commencement of this litigation, Federal had not obtained an expert
report that concluded that “Planning, Design, Materials or
Maintenance,” as that term is used in Your fourth affirmative defense,
was the cause of loss with respect to Ramaco’s insurance claim. For
purposes of this request, “expert report” includes any opinion provided
by any person or entity retained by Federal to investigate the cause of loss
with respect to Ramaco’s insurance claim, whether such opinion was
rendered in writing or orally, formally or informally.
RESPONSE: Federal objects to this request based on the
definition of “expert report” because the definition provided is not
the ordinary and customary use of the term “expert report” in
litigation and under and in connection with the Federal Rules,
specifically, and the request may accordingly result in a response
that is prejudicial and/or misleading and/or subject to
misinterpretation, and which may result in confusion. Federal
construes this request to mean “engineering report.” Responding
further, Federal objects to this request for admission because this
request conflates Federal’s factual determinations with Federal’s
legal defenses, and with the application of the Federal Policy, and
the law, to facts and to Federal’s factual determinations. This
request is accordingly incapable of being answered as
propounded, and is therefore objectionable. Federal’s factual
determination was that the cause of loss was corrosion, and the
three WJE engineers retained by Federal to investigate the
November 5, 2018 failure event determined the cause of loss was
corrosion. Federal admits that it therefore did not obtain an
engineering report that determined that “Planning, Design,
Materials or Maintenance”, as that phrase is used in the Federal
Policy and referenced in Federal’s affirmative defenses,
encompassed the factual determination that the cause of loss was
corrosion. This request is denied to the extent it seeks an
admission inconsistent with the foregoing. ACE American adopts
the foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Admitted.
REQUEST FOR ADMISSION NO. 38. Admit that, prior to the
commencement of this litigation, Federal had not obtained an expert
report that concluded that “wear and tear,” as that term is used in Your
fifth affirmative defense, was the cause of loss with respect to Ramaco’s
insurance claim. For purposes of this request, “expert report” includes
any opinion provided by any person or entity retained by Federal to
investigate the cause of loss with respect to Ramaco’s insurance claim,
whether such opinion was rendered in writing or orally, formally or
informally.
RESPONSE: Federal objects to this request based on the
definition of “expert report” because the definition provided is not
the ordinary and customary use of the term “expert report” in
litigation and under and in connection with the Federal Rules,
specifically, and the request may accordingly result in a response
that is prejudicial and/or misleading and/or subject to
misinterpretation, and which may result in confusion. Federal
construes this request to mean “engineering report.” Responding
further, Federal objects to this request for admission because this
request conflates Federal’s factual determinations with Federal’s
legal defenses, and with the application of the Federal Policy, and
the law, to facts and to Federal’s factual determinations. This
request is accordingly incapable of being answered as
propounded, and is therefore objectionable. Federal’s factual
determination was that the cause of loss was corrosion. Federal
admits that it therefore did not obtain an engineering report that
determined that “wear and tear” was the cause of loss, but Federal
denies any implication that the “Wear and Tear” provisions of the
Federal Policy are inapplicable to the factual circumstances of the
November 5, 2018 failure event. This includes, without limitation,
because these provisions encompass or may encompass the
factual determination that the cause of loss was corrosion, and
these provisions encompass or may encompass one or more
factual allegations made by Ramaco about the November 5, 2018
failure event. This request is denied to the extent it seeks an
admission inconsistent with the foregoing. ACE American adopts
the foregoing objections, clarifications, and responses, as its
objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
(ECF Nos. 131-3, 185-2).
Afterward, Ramaco filed the instant petition for attorneys’ fees and costs related
to obtaining the responses. (ECF No. 182). Ramaco initially sought $31,900 in
attorneys’ fees and costs related to its motion to compel.1 (Id. at 2, 6). Ramaco stated
1 This figure was reduced to $19, 587.50 in Ramaco’s reply brief. (ECF No. 193 at 16-17).
that its “attorneys generally command an hourly rate between $450 and $600 per
hour,” and they expended 70.5 hours2 meeting and conferring, researching, and
drafting the 14-page memorandum and 20-page reply in support of the Ramaco’s
successful motion to compel. (Id. at 5, 6). Ramaco attached an affidavit and time sheet
in support of its petition. (ECF Nos. 182-1, 182-2).
Defendants argued that Ramaco was not entitled to reimbursement of fees and
costs because Defendants were justified in litigating with Ramaco over the 15 requests
for admission. Defendants contended that the Court should apportion the fees
pursuant to Fed. R. Civ. P. 37(a)(5)(C) by requiring each party to bear their own fees
and costs related to the motion. (ECF No. 190 at 1). They claimed that the requests
were “unclear and ambiguous, and likely to create confusion in the record on this case,
making Defendants’ responses appropriate and reasonable.” (Id. at 1-2). Defendants
further stated that there is no better evidence of the fact that the requests for admission
were confusing “than Ramaco’s recent objections and demand for an explanation for
the one-word amended answers.” (Id. at 2); see (ECF No. 191).
Defendants further asserted that the amounts claimed by Ramaco were facially
unreasonable. (ECF No. 190 at 2). They noted that the two “meet and confer” calls
totaled less than 30 minutes, the memorandum cited black letter law, and the briefs
focused on the content of Defendants’ responses. (Id. at 2-3). Defendants identified
specific tasks—which Ramaco claimed in the petition—that concerned discovery
disputes completely unrelated to the 15 requests for admission at issue, including
entries relating to corporate disclosure statements, corporate structure, and other
2 This figure was reduced to 43.75 hours in Ramaco’s reply brief. (Id.).
matters. (Id. at 3, 5-6). Defendants noted other inconsistences, such as when a Ramaco
partner billed 1.1 hours and an associate billed 4.7 hours for the same phone call. (Id.
at 12). In sum, Defendants argued that billing a full work week to draft a single motion
to compel was beyond reason. (Id.).
In reply, Ramaco stated that the Court already determined that the requests for
admission were unambiguous. (ECF No. 193 at 1). Therefore, Ramaco contended that
it must be granted fees under Fed. R. Civ. P. 37(a)(5)(A)(ii) unless Defendants can show
that their responses were “substantially justified.” (Id. at 2). Ramaco argued that the
responses were not substantially justified because Defendants nonsensically read
identically-phrased requests for admission to call for two different types of
information. (Id. at 4). Ramaco asserted that Defendants’ use of dual formulations, one
of which Defendants employed to answer the nine requests that they ultimately
admitted and one of which Defendants employed to answer the six requests that they
ultimately denied, evidenced that Defendants understood the requests for admission
all along, but chose to engage in wordplay and bury their answers in “sea of baseless
objections and unnecessary qualifications.” (Id. at 9-10). Ramaco referred to
Defendants’ assertions regarding the fees claimed in the petition as “quibbles” and
stated that they warranted a modest reduction in the fees initially sought. (Id. at 13).
Ramaco submitted a revised request for fees totaling $19,587.00, relating to 43.75
billable hours. (Id. at 16-17).
II. Discussion
A. Recovery of Expenses
The Court first considers whether the expenses that Ramaco seeks are
recoverable under the law. As noted, Ramaco filed a motion to compel after Defendants
responded to Ramaco’s requests for admission with lengthy, qualified answers instead
of forthright admissions or denials. (ECF No. 131). The Court ruled that Defendants’
objections were improper and that Defendants failed to show that good faith required
the qualified responses that they provided, or that Defendants were incapable of
responding to the requests. (ECF No. 157 at 12); see, e.g., Michael v. Wes Banco Bank,
Inc., No. 5:04-CV-00046, 2006 WL 1705935, at *2 (N.D.W. Va. June 16, 2006) (“The
Federal Rules of Civil Procedure permit the following responses to a request for
admission: (1) an objection on the grounds that the matter demanded to be admitted
is beyond the scope of discovery permitted by Fed. R. Civ. P. 26(b)(1); (2) an admission;
(3) a denial; (4) a detailed explanation why the matter can be neither admitted nor
denied; or (5) a good faith qualified admission that admits certain matters, if possible,
but denies or gives a qualified answer to the rest. Fed. R. Civ. P. 36(a).”).
In fact, the Court concluded that “Defendants added extraneous qualifiers and
detail to their responses which resulted in unnecessarily confusing and ambiguous
responses to Plaintiff’s very straightforward requests for admission.” (Id.). The Court
granted Ramaco’s motion to the extent that it requested an order compelling
Defendants to provide unambiguous responses, but it denied the motion to the extent
that it requested that the matters be deemed admitted. (Id. at 13).
In response to the Court’s Order, Defendants amended their responses and
admitted nine and denied six of the 15 requests. (ECF No. 185-2). Ramaco now seeks
what it contends are its reasonable expenses incurred in making the motion to compel.
(ECF No. 182). Ramaco relies on Fed. R. Civ. P. 37(a)(5)(A)(ii), stating that Defendants
must pay Ramaco’s expenses associated with its successful motion unless Defendants’
initial discovery responses were “substantially justified.” (ECF No. 193 at 2).
Conversely, Defendants rely on Fed. R. Civ. P. 37(a)(5)(C), arguing that the motion to
compel was granted in part and denied in part, and the Court should apportion the fees
by requiring each party to bear its own expenses because “Defendants were justified in
litigating with Ramaco over the 15 requests for admission” at issue. (ECF No. 190 at 1).
Rule 37(a)(5)(A) provides that when a motion compelling disclosure or
discovery is granted, or a disclosure or discovery is provided after the motion is filed:
(A) […] [T]he court 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). Rule 37(a)(5)(C) explains that, if the motion is granted in
part and denied in part, the court may issue a protective order and may apportion the
reasonable expenses for the motion after giving the parties the opportunity to be heard.
Fed. R. Civ. P. 37(a)(5)(C).
As an initial matter, Defendants’ argument that the parties should bear their
own costs regarding the motion to compel is unpersuasive. Defendants rely on cases
which are factually distinct from this case, because not all of the requested discovery
was compelled. (ECF No. 190 at 8); see Baker v. BorgWarner Morse TEC, Inc., No.
3:11-CV-00505, 2012 WL 13026647, at *1 (S.D.W. Va. Apr. 12, 2012) (denying motion
for sanctions after motion to compel that was granted as to some requests for
admission and denied as to some requests for admission); Plumbers & Pipefitters
Local 625 v. Nitro Constr. Servs., Inc., No. 2:18-CV-01097, 2019 WL 5295587, at *2
(S.D.W. Va. Oct. 18, 2019) (denying request for reasonable expenses regarding motions
to compel where first motion was granted, in part, and additional motions to compel
were denied as moot). In addition, Defendants rely on a case in which attorneys’ fees
were, in fact, awarded because the party’s responses to the discovery requests were not
substantially justified. (ECF No. 190 at 9); see Burkett ex rel. Estate of Burkett v. AIG
Claim Servs., Inc., 244 F.R.D. 328, 332 (N.D.W. Va. 2005), aff'd sub nom. Burkett v.
AIG Claim Servs., Inc., No. 3:03-CV-1, 2007 WL 9734152 (N.D.W. Va. July 16, 2007).
In this case, Ramaco filed a motion to compel concerning 15 requests for
admission. The Court granted the motion and ordered Defendants to properly respond
to all 15 requests. (ECF No. 157). Although the Court did not award all of the relief
that Ramaco requested by not deeming the requests admitted, Ramaco’s motion was
successful as to all of the discovery requests that were the subject of the motion. There
is no dispute that the parties conferred in an attempt to obtain the discovery before the
motion was filed, and Defendants offer no other circumstances that would make an
award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i), (iii). Therefore, Ramaco is
entitled to its reasonable expenses incurred in making that motion unless Defendants’
responses and objections were substantially justified. Fed. R. Civ. P. 37(a)(5)(A)(ii).
“A party satisfies the substantially justified standard if there is a genuine dispute
as to proper resolution or if a reasonable person could think that the failure to produce
discovery is correct, that is, if it has a reasonable basis in law and fact.” Lynn v.
Monarch Recovery Mgmt., Inc., 285 F.R.D. 350, 365 (D. Md. 2012) (quoting Decision
Insights, Inc. v. Sentia Grp., Inc., 311 Fed. Appx. 586, 599 (4th Cir.2009)) (markings
omitted); see also Burkett, 244 F.R.D. at 330 (citing Wright, Miller & Marcus, Federal
Practice and Procedure: Civil 2d § 2288 (1994) (“Making a motion, or opposing a
motion, is ‘substantially justified’ if the motion raised an issue about which reasonable
people could genuinely differ on whether a party was bound to comply with a discovery
rule.”)). In this case, Defendants do not offer any legitimate justification, let alone
substantial justification, to explain why the admissions and denials to Ramaco’s
requests were not provided prior to Ramaco filing the motion to compel. Defendants
objected that the requests “conflated factual determinations with legal defenses and
the application of the policy and the law to facts and factual determinations.” (ECF No.
131-3 at 5-20). However, Rule 36(a)(1)(A) explicitly allows requests for admission
concerning facts, the application of law to fact, or opinions about either. For reasons
more fully explained in the Court’s order on the motion to compel, Defendants’
objections and responses were entirely improper because the discovery requests were
within the scope provided in Rule 36(a). (ECF No. 157).
As indicated by Ramaco, Defendants’ initial responses employed a dual
formulation regarding the requests for admission based on whether the requests were
properly admitted or denied. The Court cannot ascertain any reasonable basis for
Defendants to respond in the manner which they initially did to the requests that they
easily could have admitted or denied in the first place. For example, they responded in
this manner to some requests:
REQUEST FOR ADMISSION NO. 21. Admit that Federal never
determined that “acts or omissions,” as that term is used in Your second
affirmative defense, was the cause of loss with respect to Ramaco’s
insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “acts or
omissions” as that phrase is used in the Federal Policy and
referenced in Federal’s affirmative defenses, encompassed the
factual determination that the cause of loss was corrosion. This
request is denied to the extent it seeks an admission inconsistent
with the foregoing. ACE American adopts the foregoing
objections, clarifications, and responses, as its objections,
clarifications, and responses to this request.
AMENDED RESPONSE: Admitted.
The responses to eight other requests for admissions were substantially the same
except the term “acts or omissions” was replaced with the terms “business errors” or
“planning, design, materials or maintenance.” By contrast, Defendants responded in a
different manner to six of the requests:
REQUEST FOR ADMISSION NO. 23. Admit that Federal never
determined that “Inherent Vice/Latent Defect,” as those terms are used
in Your third affirmative defense, was the cause of loss with respect to
Ramaco’s insurance claim.
RESPONSE: Federal objects to this request for admission
because this request conflates Federal’s factual determinations
with Federal’s legal defenses, and with the application of the
Federal Policy, and the law, to facts and to Federal’s factual
determinations. This request is accordingly incapable of being
answered as propounded, and is therefore objectionable. Federal’s
factual determination was that the cause of loss was corrosion.
Federal admits that it therefore did not determine that “Inherent
Vice/Latent Defect” was the cause of loss, but Federal denies any
implication that the “Inherent Vice/Latent Defect” provisions of
the Federal Policy are inapplicable to the factual circumstances of
the November 5, 2018 failure event. This includes, without
limitation, because these provisions encompass or may
encompass the factual determination that the cause of loss was
corrosion, and these provisions encompass or may encompass one
or more factual allegations made by Ramaco about the November
5, 2018 failure event. This request is denied to the extent it seeks
an admission inconsistent with the foregoing. ACE American
adopts the foregoing objections, clarifications, and responses, as
its objections, clarifications, and responses to this request.
AMENDED RESPONSE: Denied.
Defendants applied this response pattern to the requests concerning “inherent
vice/latent defect” and “wear and tear.”
Defendants very clearly buried their admissions and denials within baseless
objections and wordplay, which required Ramaco to file a motion to compel and
expend resources to receive straightforward answers. Defendants’ contentions that the
requests for admission were ambiguous and confusing carries no weight. They
understood the requests, hence their dual formulation of responses, but they chose to
respond evasively. Defendants point to Ramaco’s motion for sanctions concerning
their amended responses, (ECF No. 191), as evidence that the requests were confusing
in the first place. However, Ramaco’s motion was due to the fact that Defendants’ initial
answers were confusing, not because there was any ambiguity in the requests.
Specifically, Ramaco interpreted all of Defendants’ initial convoluted responses as
admissions. Thus, Ramaco took issue with the fact that Defendants denied six of the
requests in their amended responses. Regardless, even if Defendants genuinely
misinterpreted the requests, the requests were facially unambiguous and Defendants’
misinterpretation was unreasonable, as previously discussed by the Court. See (ECF
No. 157). Defendants assert no substantial justification for their failure to comply with
Rule 36. As such, they must pay Ramaco’s reasonable expenses related to the motion
to compel.
Additionally, as to the nine requests which Defendants ultimately admitted,
Defendants very clearly failed to admit matters which Ramaco has now shown to be
true under Rule 37(c)(2):
Failure to Admit. If a party fails to admit what is requested under Rule
36 and if the requesting party later proves a document to be genuine or
the matter true, the requesting party may move that the party who
failed to admit pay the reasonable expenses, including attorney’s fees,
incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it
might prevail on the matter; or
(D) there was other good reason for the failure to admit.
Fed. R. Civ. P. 37(c)(2). Therefore, Ramaco is entitled to repayment of its reasonable
expenses incurred in making that proof unless one of the four Rule 37(c)(2) exceptions
apply.
The first exception is plainly inapplicable because the Court did not find that the
request was objectionable under Rule 36(a). Fed. R. Civ. P. 37(c)(2)(A); see (ECF No.
157). As to the second exception, Defendants do not argue, nor does the Court find, that
the matters sought in the requests for admission were of no substantial importance.
Fed. R. Civ. P. 37(c)(2)(B). To the contrary, the cause of loss is the primary issue in this
lawsuit because Defendants contend that the peril that occurred was excluded under
the policy. The third exception concerns whether Defendants had a reasonable belief
that they might prevail on the matter. Fed. R. Civ. P. 37(c)(2)(C). Defendants offer no
basis that this exception applies. The requests were straightforward, and Defendants
were able to answer them, albeit it a needlessly confusing manner. Defendants’
explanation as to their initial interpretation of the requests does not amount to a
reasonable belief that they might prevail on the matter. Their unfounded
interpretation of the requests was unreasonable. Finally, regarding the fourth
exception, Defendants do not offer any other good reason for their failure to admit.
For all of the above reasons, the Court finds that Ramaco is entitled to its
reasonable expenses regarding the motion to compel.
B. Reasonable Expenses
The Court follows a three-step process in calculating an award of attorneys’ fees.
McAfee v. Bozcar, 738 F.3d 81, 88 (4th Cir 2013) (“The proper calculation of an
attorney’s fee award involves a three-step process.”) First, the Court must “determine
a lodestar figure by multiplying the number of reasonable hours expended times a
reasonable rate.” Robinson v. Equifax Information Services, LLC, 560 F.3d 235, 243
(4th Cir. 2009) (citing Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)).
The burden of establishing a reasonable rate and demonstrating that a reasonable
number of hours was expended rests with the party seeking attorneys’ fees. McGee v.
Cole, 115 F. Supp. 3d. 765, 771 (S.D.W. Va. 2015) (citing Hensley v. Eckerhart, 461 U.S.
424, 433 (1983)). The United States Court of Appeals for the Fourth Circuit (“Fourth
Circuit”) has enumerated twelve factors to consider when determining a lodestar
figure, including the following:
(1) the time and labor expended; (2) the novelty and difficulty of the
questions raised; (3) the skill required to properly perform the legal
services rendered; (4) the attorney’s opportunity costs in pressing the
instant litigation; (5) the customary fee for like work; (6) the
attorney’s expectations at the outset of the litigation; (7) the time
limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation
and ability of the attorney; (10) the undesirability of the case within
the legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and client;
and (12) attorneys’ fees awards in similar cases.
Robinson, 560 F.3d at 243-244 (citing Johnson v. Ga. Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974)).
At the second step of the process, the Court must subtract from the lodestar
figure “fees for hours spent on unsuccessful claims unrelated to successful ones.”
Grissom, 549 F.3d at 321 (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th
Cir. 2002)). Once this calculation is completed, the court proceeds to the third step,
which consists of the court increasing the step-two figure by “some percentage of the
remaining amount, depending on the degree of success enjoyed by the [party seeking
fees].” Johnson, 278 F.3d at 337. In this case, the Court need not formally proceed to
the second and third steps, because the fees are being awarded secondary to a discovery
motion, rather than as an award based upon a successful resolution of the case as a
whole.
“When calculating reasonable fees, establishing the hourly rate is generally the
critical inquiry.” Wolfe v. Green, No. 2:08–cv–01023, 2010 WL 3809857 at *4 (S.D.W.
Va. Sept. 24, 2010) (quoting Westmoreland Coal Co. v. Cox, 602 F.3d 276, 289 (4th
Cir. 2010)). An hourly rate is considered reasonable when it is “in line with those
prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 890 n. 11 (1984).
“[T]he community in which the court sits is the first place to look to in evaluating the
prevailing market rate.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 179 (4th
Cir. 1994). The prevailing market rate for attorneys’ fees in a given jurisdiction may be
established “by evidence of what attorneys earn from paying clients for similar services
in similar circumstances.” Depaoli v. Vacation Sales Assocs, LLC, 489 F.3d 615, 622
(4th Cir. 2007). Consequently, affidavits outlining hourly rates typically charged and
received by local attorneys in the case are useful in determining home market rates. Id.
Likewise, affidavits from other local lawyers, who are not involved in the case, but are
familiar with the skill level of the involved attorneys and with the type of work
performed, are also evidence of the range of reasonable hourly rates in the relevant
district. Robinson, 560 F.3d at 245. In the absence of persuasive affidavits, the court
may look to “previous awards in the relevant marketplace as a barometer for how much
to award counsel in the immediate case.” Newport News Shipbuilding & Dry Dock Co.
v. Holiday, 591 F.3d 219, 228 (4th Cir. 2009). When the fee applicant fails to provide
sufficient outside evidence of prevailing rates in the community, the court may also
rely on its own knowledge of such rates. Rum Creek Coal Sales, 31 F.3d at 174.
In this case, the only rate information that Ramaco provided is an affidavit from
one of its attorneys, Rebecca Pomeroy, Esquire, stating that the hourly rates charged
in relation to the motion to compel were consistent with rates that the firm, Bailey &
Glasser, LLP (“the law firm”), charged for similar work. (ECF No. 182-1 at 4). The
affidavit and attached time sheet provide information concerning the following four
professionals who worked on the motion to compel. Ms. Pomeroy, whose rate is listed
as $500.00 per hour, is a partner in the firm’s Charleston, West Virginia, office; she
has more than 19 years of legal experience, and she serves as the firm’s civil defense
practice group leader and oversees the firm’s insurance recovery cases. (ECF Nos. 182-
1 at 1, 182-2 at 2-3; 193 at 16-17). Michael Murphy, Esquire, whose rate is listed as
$600.00 per hour, works in the firm’s Washington, D.C., office and has 18 years of
complex litigation experience. (ECF Nos. 182-1 at 3, 182-2 at 2-3; 193 at 16). Joshua
Hammack, Esquire, whose rate is listed as $450.00 per hour, graduated summa cum
laude from Notre Dame Law School and works as an associate attorney in the firm’s
Washington, D.C., office; he has seven years of commercial litigation experience. (ECF
Nos. 182-1 at 3, 182-2 at 2-4; 193 at 16-17). Finally, Manuel Rios, whose rate is listed as
$250.00 per hour, is a senior litigation paralegal in the firm’s Washington, D.C., office.
(ECF Nos. 182-1 at 3, 182-2 at 2-3; 193 at 16).
Ramaco offers no other evidence to support the hourly rates claimed in its
petition. For instance, it did not provide affidavits concerning the rates charged by
other local attorneys for similar work. As noted, “[t]he prevailing party has the burden
of producing satisfactory evidence that the requested rates are similar to the prevailing
market rate in the forum’s community, which reflects similar services by lawyers of
reasonably comparable skill, experience and reputation.” Meadows v. AM & GH LLC,
No. 2:15-CV-13370, 2018 WL 3876587, at *3 (S.D.W. Va. Aug. 15, 2018) (quoting Blum,
465 U.S. at 895 & n.11; see also Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir.
2008); Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). The prevailing rate “is
typically established by affidavits of counsel with similar experience as to what they
would charge for a similar case, amounts awarded to counsel with similar experience
in similar litigation, and amounts awarded to counsel for his services in prior
litigation.” Id. (citing Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d
219, 228 (4th Cir. 2009)). The Court may also consider counsel’s experience, expertise,
and his or her status as a partner or associate. Id. (citations omitted).
Herein, three of the individuals who charged fees for the motion to compel work
in the firm’s Washington, D.C., office. “To determine whether extrajurisdictional
counsel are entitled to the prevailing hourly rates in their home jurisdiction, the court
should consider the following questions: (1) did counsel provide services that were not
available in the court’s jurisdiction; and (2) did the client make a reasonable choice in
hiring extrajurisdictional counsel, or did the client select an unreasonably expensive
attorney? Johnson v. Ford Motor Co., No. 3:13-CV-06529, 2018 WL 1440833, at *2
(S.D.W. Va. Mar. 22, 2018). Ramaco does not offer any evidence or argument regarding
how it selected counsel or that the extrajurisdictional attorneys in this case provided a
unique service that could not be offered by less expensive and equally available local
counsel. This is not highly complex or unusual case by any means. Rather, this is an
insurance coverage case, which is routinely handled in this jurisdiction. Therefore, the
prevailing market rates in the Southern District of West Virginia should be applied.
The Court has previously concluded, based on case law research, that “the
prevailing rates for attorney services in this jurisdiction range from $150 to $550 per
hour and between $100 and $145 per hour for paralegal services.” Id. at *6. Ms.
Pomeroy’s rate of $500.00 falls within the higher end of that range. However,
Defendants do not contend that Ms. Pomeroy’s rate is unreasonable. Given the lack of
opposition and that fact that the rate falls within the range that was awarded in other
cases, the Court finds Ms. Pomeroy’s rate to be reasonable. The Court notes that Ms.
Pomeroy is a partner at a respected law firm with at least 19 years of experience, and
she routinely works on insurance disputes of this nature, which supports the
reasonability of her hourly rate. (ECF No. 182-1 at 1).
Ramaco offers no explanation for Mr. Murphy’s higher rate of $600.00 per
hour. Mr. Murphy is a partner in the same firm as Ms. Pomeroy, and he has practiced
for equal or less years than Ms. Pomeroy. (Id. at 3). The fact that Mr. Murphy
specializes in complex litigation is of no consequence, as this is not a complex case.
(Id.). Therefore, the only apparent justification for Mr. Murphy’s higher rate, because
Ramaco provided no other explanation, is that Mr. Murphy’s hourly rate is based on
his location in Washington, D.C. For the reasons noted, the prevailing market rate in
this district dictates the attorneys’ fees in this action. Thus, the Court finds that an
hourly rate of $500.00 per hour, the rate that local attorney Ms. Pomeroy charged in
the same case, is the reasonable rate for Mr. Murphy’s fees.
Defendants contend that associate attorney Mr. Hammack’s hourly rate of
$450.00 is unreasonable, and the Court agrees. Mr. Hammack, who practices in
Washington, D.C., billed an hourly rate that exceeds the prevailing rate charged by
associate attorneys for this type of work in this jurisdiction. If anything, Mr.
Hammack’s rate comports to the hourly rates charged by experienced partners in this
area. Gabe v. Dolgencorp, LLC, No. 5:17-CV-04380, 2018 WL 5985687, at *2 (S.D.W.
Va. Nov. 14, 2018) (approving hourly rate of $425 for partner and $300 for associate
attorney); Riddle v. Atkins & Ogle Law Offices, LC, No. CV 3:19-0249, 2020 WL
3496470, at *2 (S.D.W. Va. June 29, 2020) (approving hourly rate of $450.00 for
senior partner); Young v. Act Fast Delivery of W. Virginia, Inc., No. 5:16-CV-09788,
2020 WL 4805036, at *5 n.1 (S.D.W. Va. Aug. 18, 2020) (approving hourly rates of
$400.00 and $500.00 for seasoned partners). The Court finds that $300.00 per hour
is a reasonable rate for Mr. Hammack’s services based on the range of prevailing
market rates in this jurisdiction for a senior litigation associate with Mr. Hammack’s
credentials and experience.
Paralegal Mr. Rios’ hourly rate of $250.00 likewise exceeds the prevailing
market rate in this jurisdiction. See, e.g., Johnson, 2018 WL 1440833, at *6. Given the
fact that Defendants do not oppose Mr. Rios’ rate, and he is noted to be senior litigation
paralegal, the Court determines that $145.00 per hour, the higher end of the range that
has previously been awarded in this jurisdiction, is a reasonable rate for Mr. Rios’
services.
The Court next turns to the time entries that Ramaco billed. “When reviewing a
fee petition, the Court must exclude any hours that are excessive, redundant, or
otherwise unnecessary.” Allen v. Monsanto Company, 2007 WL 1859046 at *2
(S.D.W. Va. June 26, 2007) (citing Hensley y v. Eckerhart, 461 U.S. 424, 434 (1983)).
“Counsel for a prevailing party has a duty to exercise ‘billing judgment’ to ‘exclude from
a fee request hours that are excessive, redundant or otherwise unnecessary, just as a
lawyer in private practice ethically is obligated to exclude such hours from his fee
submission […]’” Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir. 1986) (quoting Hensley,
461 U.S. at 434)). A fee application should contain, at a minimum, the dates on which
the work was performed, a reasonably specific description of the work, and the amount
of time spent on each task. Central Cab Company, Inc., v. Cline, 972 F. Supp. 370, 374
(S.D.W. Va. 1997). While the Court should look for evidence of excessive billing, such
as duplication of effort and overuse of discovery, Xiao-Yue Gu v. Hughes STX Corp.,
127 F. Supp. 2d 751, 765 (D. Md. 2001), the Court “need not, and indeed should not,
become [a] green-eyeshade accountant[].” Fox v. Vice, 563 U.S. 826, 838 (2011). “The
essential goal” in awarding fees is “to do rough justice, not to achieve auditing
perfection.” Id. Thus, the Court “may take into account [its] overall sense of [the] suit,
and may use estimates in calculating and allocating an attorney’s time.” Id. “Even in
the absence of novel questions, an expenditure of significant hours may be reasonable
where ‘the case certainly posed difficulties from an evidentiary standpoint and required
a high degree of skill to win.’” Xiao-Yue, 127 F. Supp. 2d at 766 (quoting Herold v.
Hajoca Corp., 682 F. Supp. 297, 300 (W.D. Va. 1988)).
Ramaco amended its requested fees in its reply. Therefore, the Court only
considers the entries in the amended requests. To begin, all three attorneys billed for
the same meet and confer call with Defendants’ counsel on July 3, 2020 concerning
the requests for admission at issue. (ECF Nos. 182-2 at 2, 193 at 16). Defendants
concede that these fees are recoverable. (ECF No. 190 at 2, 5). Therefore, the Court will
not question that Ramaco is entitled to reasonable expenses for the call. However,
Ramaco provides no explanation regarding why three attorneys, including two high-
level partners and one senior associate, were required to be on the call, or why it could
not be handled by an associate attorney. Because Ramaco offers no evidence to show
that the fees for all three attorneys were reasonable, the Court cannot award the
duplicative fees. The Court finds that Ramaco is entitled to the requested 0.25 hours at
the Court-designated associate’s rate of $300.00 per hour for a total of $75.00 for the
July 6, 2020 meet and confer call.
As to the July 29, 2020 entry, Ramaco states that it cannot ascertain how much
time was spent on research concerning the 15 requests for admission that were the
subject of the motion to compel, as opposed to other discovery requests that it
researched at the same time, but “[i]t is certainly reasonable to assume that as much
preparation went into the call as the time spent on the call (i.e., an additional twenty-
five minutes, which is rounded to half an hour in the table below, consistent with billing
practice.” (ECF No. 193 at 14). The Court declines to award fees based on Ramaco’s
speculative guess regarding the time expended on research related to the motion.
Ramaco had the opportunity to offer evidence to support this entry, such as an affidavit
from Mr. Hammack estimating the amount of time that he spent researching regarding
the requests for admission at issue on that date. However, Ramaco declined to provide
such evidence. Therefore, the Court finds that those fees are not recoverable.
Ramaco lists two entries from Mr. Hammack dated July 30, 2020. The first
entry includes 12 minutes spent preparing for and communicating with Defendants’
counsel concerning the requests for admission at issue. (ECF Nos. 182-2 at 2, 193 at
16). Defendants agree that the discussion with Ramaco on that date lasted “10 minutes
at the most,” and the Court finds it reasonable that Mr. Hammack spent two minutes
preparing for the call. Therefore, the Court finds that Ramaco is entitled to its fees for
12 minutes at the associate rate of $300 in the total amount of $60.00. However, the
other entry on July 30, 2020 includes various matters such as “communicate with case
team” regarding the meet and confer call and depositions, communicate with
Defendants’ counsel regarding an extension to the deadline for motions to compel,
draft and revise a stipulation to that effect, and review the local rules to determine if a
stipulation is needed. It was Ramaco’s own prerogative to work on a stipulation
regarding a deadline extension, and the Court does not find these fees to be recoverable
because they were not necessary to prosecuting the motion to compel. Ramaco also
fails to identify who was on the “case team” and why such communications were
necessary. Assuming that these were interoffice communications, Ramaco does not
establish any reason that the discovery issues involved in the simple motion to compel
required the coordination of several professionals. The Court finds that these fees were
unreasonable, and they are not recoverable by Ramaco.
Mr. Hammack’s entries on August 5 through 7 and 10, 2020 amount to 13.4
hours that consisted of drafting and revising the motion to compel at issue,
communicating with the “case team” regarding the same, communicating with Mr.
Rios regarding filing the motion, and finalizing the brief and exhibits for filing. (ECF
Nos. 182-2 at 3, 193 at 16). Defendants contend that the work product could not have
taken the amount of time that Ramaco billed. (ECF No. 190 at 6). Ramaco responds
that the motion required close review of discovery responses, other court filings, and
at least eight deposition transcripts, all of which Ramaco cited in its memorandum in
support of the motion to compel. (ECF No. 193 at 14-15). The fees related to drafting,
revising, and filing the motion to compel are recoverable. However, Mr. Hammack
failed to separate those entries from his non-recoverable time spent communicating
with the case team. Again, there is no explanation as to why so much interoffice
communication was necessary to draft and file an uncomplicated motion to compel.
The Court awards ten hours of fees at the associate’s rate of $300.00 for a total amount
of $3,000.00 related to drafting, revising, and filing the motion to compel.
In the midst of the above entries, Mr. Murphy billed .2 hours on August 7, 2020
for “review[ing] email re meet and confer discovery.” (ECF Nos. 182-2 at 3, 193 at 16).
This entry is not specific enough to demonstrate that it was reasonably related to
Ramaco’s motion to compel. The parties agree that there were various ongoing
discovery disputes in addition to the 15 requests for admission that were the subject of
the motion to compel. Mr. Murphy did not specify who sent the email or whether it
concerned the requests for admission at issue. Therefore, the Court finds that Mr.
Murphy’s fees on this date are not recoverable.
Mr. Rios billed 1.4 hours on August 10 and 11, 2020 related to filing the motion
to compel and providing a courtesy copy to the Court. While this amount of time seems
a bit excessive, Defendants do not articulate any specific argument opposing it, and it
is not beyond reason. The Court finds that Ramaco is entitled to 1.4 hours of fees at the
designated paralegal rate of $145.00 for the total amount of $203.00.
Mr. Hammack’s entry on August 19, 2020 refers to communicating with his case
team concerning ongoing “discovery issues” and communicating with opposing
counsel concerning the same. (ECF Nos. 182-2 at 3, 193 at 16). These fees are not
recoverable as Ramaco has not met its burden of showing that these tasks were
reasonably related to the motion to compel. Mr. Hammack did not identify the specific
“discovery issues” that were the subject of these tasks. Mr. Hammack’s entries on
August 24 and 25, 2020 relate to interoffice communications, but Ramaco again
offered no explanation why these tasks were necessary. (ECF Nos. 182-2 at 3, 193 at
16-17). As Ms. Pomeroy’s affidavit explains, Mr. Hammack is a distinguished associate.
Mr. Hammack also billed on August 24, 2020 for reviewing Defendants’ response to
Ramaco’s motion to compel, but his time entry also includes interoffice
communications. The Court awards one hour of fees at the rate of $300.00 for a total
of $300.00.
The remainder of the entries on August 25 through 28, 30, and 31, 2020 pertain
to drafting and revising the reply and reviewing a Rule 30(b)(6) deposition to include
in the reply. (ECF No. 182-2 at 3-4, 193 at 17). Again, Defendants argue that Ramaco
spent too much time working on the reply, but they offer no basis other than their own
opinions to dispute the amount of time expended. The entries on August 27 and 30 also
include Mr. Hammack’s communications with the case team. Subtracting the
interoffice communications, the Court finds that Ramaco is entitled to Ms. Pomeroy’s
fees of two hours at the rate of $500.00 and Mr. Hammack’s fees of 12.3 hours at the
rate of $300.00 per hour for a total of $4,690.00.
In summary, based on the evidence that Ramaco submitted, the Court awards
the following reasonable fees:
Date Name Hours Rate Total Task(s)
7/6/20 Hammack 0.25 $300.00 $75.00 Participating
in meet and
confer call
7/30/20 Hammack 0.20 $300.00 $60.00 Preparing
for and
participating
in meet and
conference
call
8/5/20, Hammack 10 $300.00 $3,000.00 | Drafting and
8/6/20, revising
8/7/20, motion to
8/10/20 compel
8/10/20, Rios 1.4 $145.00 $203.00 Filing
8/11/20 motion to
compel
8/24/20 Hammack 1 $300.00 $300.00 Reviewing
responses to
motion to
compel
8/27/20 repl
repl
Total Fees Awarded: | $8,328.00
Therefore, after accounting for the deductions, Ramaco is entitled to
reimbursement of attorney’s fees in the total amount of $8,328.00. As previously
stated, Defendants shall have thirty (30) days from the date of this Order in which
to pay the aforementioned amount in full.
The Clerk is directed to provide a copy of this Order to counsel of record.
ENTERED: December 1, 2020
\) MN L }
Cher Eifert
U ates Magistrate Judge
ee
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