United States District Court, D. Maryland
VALERIE M. STEPHENS, et al.
U.S. BANK NATIONAL ASSOCIATION, et al.
MEMORANDUM OPINION AND ORDER
DEBORAH K. CHASANOW United States District Judge.
Valerie M. Stevens and Famesha Okoeka
(“Plaintiffs”) filed this action in state court
on April 6, 2015, against Defendants U.S. Bank National
Association (“U.S. Bank”) and USAA Federal
Savings Bank (“USAA”) (collectively,
“Defendants”). (ECF No. 7). After removal to the
United States District Court for the District of Maryland, a
scheduling order was entered. (ECF No. 32). Shortly
thereafter, counsel for Plaintiffs moved to withdraw at their
request (ECF No. 34), and Plaintiffs were notified that they
were proceeding without counsel (ECF No. 35).
14, 2016, USAA filed a motion to compel responses to
interrogatories and requests for production of documents as
to both Plaintiffs, and moved for attorneys' fees,
reciting that neither Plaintiff had responded to its
discovery requests or to attempts to confer. (ECF No. 38).
Plaintiffs did not file a response to the motion and, on July
6, the motion to compel was granted. (ECF No. 39). Plaintiffs
were ordered to provide full responses no later than July 22,
and they were forewarned that failure to provide discovery
could result in dismissal of their complaint and an order to
pay USAA's expenses. (Id.).
August 16, USAA moved for discovery sanctions, reciting that
Plaintiffs still had not responded to the discovery requests,
and additionally had failed to appear for their properly
noticed depositions. (ECF No. 41). U.S. Bank filed a similar
motion on August 29. (ECF No. 42). Again, Plaintiffs did not
respond. On October 31, the court ordered Plaintiffs to show
cause within fourteen days why their complaint should not be
dismissed with prejudice and why they should not be ordered
to pay reasonable attorneys' fees. (ECF No. 45).
Plaintiffs were warned that failure to respond to the order
would result in the dismissal of their complaint without
further notice and an order providing Defendants an
opportunity to file a request for fees. (Id.).
Plaintiffs did not respond. Accordingly, on November 18, the
court granted Defendants' motions for sanctions,
dismissed Plaintiffs' complaint with prejudice, and
provided Defendants fourteen days to supplement their request
for reasonable expenses, including attorneys' fees. (ECF
No. 46). USAA filed a supplemental motion for attorneys'
fees on December 2 (ECF No. 47), which Plaintiffs have not
requests an award of reasonable attorneys' fees incurred
in connection with: (1) its motion to compel discovery (ECF
No. 38); (2) its motion for sanctions for Plaintiffs'
failure to comply with the July 6th order
compelling discovery and failure to appear for depositions
(ECF No. 41); and (3) its “efforts to obtain discovery
responses, and with the noticing and appearance for the
Plaintiffs' depositions on July 29, 2016.” (ECF No.
41, at 12). In total, USAA seeks $5, 179.50 for 18.8 hours of
work performed by three attorneys: Andrew L. Cole, Allen M.
DeBard, and Alexander R. Green.
determine the proper fee award, the court starts with the
“lodestar” figure, which is the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate. Hensley v. Eckerhart, 461
U.S. 424, 433 (1983); see Int'l Ass'n of
Machinists & Aerospace Workers v. Werner-Masuda, 390
F.Supp.2d 479, 490 (D.Md. 2005) (using lodestar method to
award attorney's fees as sanction for discovery
violation); CoStar Grp., Inc. v. LoopNet, Inc., 106
F.Supp.2d 780, 787 (D.Md. 2000) (same). “An hourly rate
is reasonable if it is ‘in line with those prevailing
in the community for similar services by lawyers of
reasonably comparable skill, experience, and
reputation.'” Duprey v. Scotts Co., 30
F.Supp.3d 404, 412 (D.Md. 2014) (quoting Blum v.
Stenson, 465 U.S. 886, 890 n.11 (1984)). In determining
what constitutes a reasonable number of hours and rate, the
court considers the factors set out in Barber v.
Kimbrell's, Inc., 577 F.2d 216, 226 n.28
(4th Cir. 1978). See also Local Rule
109.2. This court has also established presumptively
reasonable rates in Appendix B to its Local Rules. See,
e.g., Duprey, 30 F.Supp.3d at 412 (citing
Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D.
494, 509 (D.Md. 2000)). In addition, the specific facts of
the case are to be considered in calculating a reasonable
submits that hourly rates of $315 for Mr. Cole, who has been
practicing law since 1999, and $240 for Mr. DeBard and Mr.
Green, who have been practicing since 2008 and 2012,
respectively, are below the prevailing hourly rates
customarily charged in the local legal community. (ECF No.
47, at 4-5). USAA has provided no evidence regarding the
prevailing market rate. In the absence of such evidence, the
court may rely on its own knowledge of the market. CoStar
Grp., 106 F.Supp.2d at 788. The requested rates are
within the guidelines range for Mr. Cole and Mr. DeBard, but
above the suggested range based on Mr. Green's
experience. See Local Rules, App'x B. As Mr.
Cole and Mr. DeBard's rates are presumptively reasonable
and unchallenged, the court finds that they are reasonable.
In light of the court's knowledge of rates charged for
similar work by lawyers practicing before this court and in
the absence of any evidence that Mr. Green's requested
rate is reasonable and consistent with the prevailing market
rates, Mr. Green's hourly rate will be reduced to $225.
37(a)(5)(A) provides that if a motion to compel is granted,
as it was here, “the court must, after giving an
opportunity to be heard, require the party . . . 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.” The awarding of expenses and fees
is mandatory unless the court finds that one of three
exceptions applies: (1) “the movant filed the motion
before attempting in good faith to obtain the disclosure or
discovery without court action;” (2) “the
opposing party's nondisclosure, response, or objection
was substantially justified;” or (3) “other
circumstances make an award of expenses unjust.”
Id. None of the three exceptions apply here. USAA
made a good faith attempt to resolve the issue by contacting
Plaintiffs. (See ECF No. 41, at 13). Plaintiffs have
provided no justification for their failure to respond to the
discovery requests and have put forth no reason why the award
of attorneys' fees would be unjust. USAA's billing
records describe the work performed and the hours, to the
tenth of an hour, expended on each task. (ECF No. 47, at
2-3); see Local Rule 109.2. The records reflect that
Mr. Cole spent 1.6 hours on the motion to compel, and Mr.
DeBard spent 2.6. Although the number of hours expended are
well-documented with specificity, USAA offers no explanation
or justification supporting the need for multiple lawyers to
work on this case, and it appears that there was some
unreasonable duplication of hours. The motion to compel was
necessitated by Plaintiffs' failure to make any response
to USAA's discovery requests, and the motion itself was
unopposed. USAA also cannot recover for Mr. Cole's effort
to contact Plaintiffs in order to obtain the discovery
without court action as a reasonable expense incurred in
making the motion, and this time will be deducted from its
award. Accordingly, USAA's requested award of $1, 285.50
for attorneys' fees incurred in making the motion to
compel will be reduced to $1, 000.00.
also requires a court to award certain reasonable
attorneys' fees and expenses when a party has failed to
comply with a court order or has failed to attend its own
deposition. Instead of or in addition to other sanctions,
“the court must order the party failing to act. . . to
pay the reasonable expenses, including attorney's fees,
caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(d)(3); id.
37(b)(2)(C). As Plaintiffs did not respond to the court's
order directing them to show cause why they should not be
ordered to pay reasonable attorneys' fees, the court
cannot find that their failure to participate in discovery
was substantially justified or that circumstances make an
award of expenses unjust. USAA's billing records describe
the work performed and the hours, to the tenth of an hour,
expended on each task. (ECF No. 47, at 3); see Local
Rule 109.2. The records reflect that Mr. Cole spent 3.2 hours
appearing at Plaintiffs' scheduled depositions and
working on the motion for sanctions and 2.4 hours on the
supplemental fee request, and that Mr. Green spent 7.3 hours
on the motion for sanctions. The number of hours expended are
well-documented with specificity, but USAA offers no
explanation or justification supporting the need for multiple
lawyers to work on this case. Both the motion for sanctions
and the request for attorneys' fees were unopposed, and
it appears that there was some unreasonable duplication of
hours. The court finds that attorneys' fees in the amount
of $3, 000.00 are reasonable expenses caused by
Plaintiffs' failure to comply with the discovery order or
appear at their depositions.
USAA includes in its request 1.2 hours of Mr. Cole's time
spent reviewing the court's discovery orders and
communicating with Plaintiffs and U.S. Bank regarding
deposition scheduling prior to Plaintiffs' failure to
appear. These are not “reasonable expenses incurred in
making the motion” to compel, Fed.R.Civ.P. 37(a)(5)(A),
as this work followed the court's order granting the
motion to compel. The fees also cannot be “reasonable
expenses . . . caused by the failure” to appear for the
depositions, id. 37(b)(2)(C); 37(d)(3), because they
were incurred before Plaintiffs had failed to appear.
Accordingly, the requested hours are unreasonable and will
not be awarded.
foregoing reasons, the court finds that an award of
attorneys' fees in the amount of $4, 000.00 is reasonable
and will be awarded to USAA.
it is this 8th day of May, 2017, by the United
States District Court for the District of Maryland, ORDERED
supplemental motion for attorneys' fees filed by
Defendant USAA Federal Savings Bank (ECF No. 47) BE, and the
same hereby IS, GRANTED;
Plaintiffs Valerie M. Stevens and Famesha Okoeka BE, and the
same hereby ARE, ORDERED to pay Defendant USAA Federal
Savings Bank $4, 000.00 in attorneys' fees pursuant ...