United States District Court, D. Maryland
Reinsurance Company Limited, f/k/a CNA Reinsurance Company Limited
Homewood Realty Inc., et. al.
matter has been referred to me for discovery disputes and
related scheduling matters. [ECF No. 66]. Presently pending
is CX Reinsurance Company Limited's (“CX Re”)
Motion for Attorney Fees, [ECF No. 120], Intervenor-Defendant
Shyliyah Streeter's (“Streeter”) Opposition,
[ECF No. 123], and CX Re's Reply, [ECF No. 123]. I find
that no hearing is necessary. See Loc. R. 105.6 (D.
Md. 2016). For the following reasons, CX Re's Motion is
granted, although its requested award will be reduced in
accordance with this letter opinion.
factual background has been recited in prior s and will not
be repeated here. Relevant to this Motion, on December 19,
2017, CX Re filed a Motion to Deem Facts Admitted, arguing
that, had Streeter conducted a reasonable inquiry into two of
its Requests for Admission [“RFAs”], as required
by Federal Rule of Civil Procedure 36, Streeter necessarily
would have admitted each of the facts contained therein.
See [ECF No. 106]. On January 2, 2018, Streeter
filed an Opposition to CX Re's Motion [ECF No. 109], and,
on January 16, 2018, CX Re filed its Reply, [ECF No. 114].
January 21, 2018, this Court denied CX Re's Motion to
Deem Facts Admitted, but, because Streeter failed to comply
with Rule 36, ordered Streeter to: (1) make reasonable
inquiry of her documents and certain third parties; and (2)
amend her responses as necessary. [ECF No. 116 at 4-5].
Thereafter, Streeter made reasonable inquiry, and, on
February 6, 2018, admitted the disputed RFAs. [ECF Nos. 120
at 2, 123 at 2]. Because, however, Streeter's initial
responses to the once disputed RFAs plainly violated Rule 36,
this Court found that they were not substantially justified,
and that, as such, an “award of expenses and
attorneys' fees to CX Re pursuant to Rule 37(a)(5)(A)
appear[ed] to be required.” [ECF No. 116 at 5].
to the Court's order, CX Re filed a supplement,
requesting an award of $5, 120.00 for the fees it incurred in
filing its Motion. [ECF No. 120 at 1]. To support its
request, CX Re produced a schedule of fees, which
demonstrates that five of its attorneys, and a paralegal,
expended a total of 19.9 hours on the Motion and Reply. [ECF
No. 120-1 at 1-2]. Specifically, Zachary Mulcrone, “an
associate-level attorney assigned to this matter, performed a
majority of the work” and billed 8.8 hours. [ECF Nos.
120 at 3-4, 120-1 at 1-2]. He has been a member of the bar
for seven years, and his hourly rate is $250/hour. Alexander
Hess, also a member of the bar for seven years with an hourly
rate of $250/hour, billed 6 hours. Id. Ellen
Jenkins, admitted to the bar for over twenty years with an
hourly rate of $325/hour, billed .4 hours. Id. Shari
Stewart, licensed for three years with an hourly rate of
$250/hour, billed 2.2 hours. Id. Stuart M.G.
Seraina, admitted to the bar for approximately 19 years with
an hourly rate of $355/hour, billed 2.2 hours. Id.
Finally, Ashley Ryba, a paralegal, billed .3 hours at a rate
of $100/hour. Id.
argues that $5, 120.00 is a reasonable fee for the
“necessary and appropriate” actions it took to
“force Streeter to amend her insufficient answers to
its [RFAs], ” including: conferring with Streeter's
counsel prior to filing its Motion, researching relevant case
law, drafting the Motion, analyzing Streeter's
Opposition, and filing its Reply thereto. [ECF No. 120 at 3].
Streeter, however, argues that it is unreasonable to charge
such an amount for “a single motion . . . comprising 8
(eight) pages, of which 3 pages (Standard of Review section
with case authorities) is a verbatim carbon copy of the
motion CX Re simultaneously filed in the companion case of
CX Re v. Devon Johnson, 15-cv-0132-RWT [ECF 98 filed
12/19/17 at 4-5].” [ECF No. 123 at 2]. Moreover,
Streeter contends that the five attorneys “bill for the
same motion, the same reply and the same reviews of
documents, ” which she contends, because it was a
“simple motion, ” is
“unconscionable.” Id. at 3-4. Streeter,
thus, requests that this court deny CX Re's request for
fees, or, alternatively, cap the award to “no more than
$500.” Id. at 5.
calculating an appropriate attorneys' fee award, a
district court must first determine the lodestar amount
(reasonable hourly rate multiplied by hours reasonably
expended), applying the Johnson/ Barber factors when
making its lodestar determination.” Grissom v. The
Mills Corp., 549 F.3d 313, 320-21 (4th Cir. 2008)
(citing Barber v. Kimbrell's Inc., 577 F.2d 216,
226 (4th Cir. 1978)). The Johnson/Barber factors
(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.
Id. at 321 (citing Spell v. McDaniel, 824
F.2d 1380, 1402 n.18 (4th Cir. 1987)). Importantly,
“[d]etermination of the hourly rate will generally be
the critical inquiry in setting the reasonable fee, and the
burden rests with the fee applicant to establish the
reasonableness of a requested rate.” Id.
(citing Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.
1990)). Finally, the amount of any award of attorney's
fees “is within the sound discretion of the trial
court.” Burnley v. Short, 730 F.2d 136, 141
(4th Cir. 1984); see also Flores v. City Certified Bldg.
Servs., Inc., No. CV ELH-16-2135, 2016 WL 6780209, at *4
(D. Md. Nov. 16, 2016) (“[A] trial court is vested with
discretion in determining the award of fees, given its
‘superior understanding of the litigation.'”
(quoting Thompson v. HUD, No. MJG-95-309, 2002 WL
31777631, at *6 n.18 (D. Md. Nov. 21, 2002)).
CX Re's Motion to Deem Facts Admitted was denied, by
filing the Motion, it successfully forced Streeter to make
reasonable inquiry of the disputed RFAs (as required by Rule
36) and to amend her responses. See [ECF No. 116 at
4-5]. Thereafter, Streeter admitted the RFAs in question.
[ECF Nos. 120 at 2, 123 at 2]. CX Re's Motion, therefore,
achieved its desired results. See McDonnell v. Miller Oil
Co., 134 F.3d 638, 641 (4th Cir. 1998)
(“‘[T]he most critical factor' in calculating
a reasonable fee award ‘is the degree of success
obtained, ' and when ‘a plaintiff has achieved only
partial or limited success, the product of hours reasonably
expended on the litigation as a whole times a reasonable
hourly rate may be an excessive amount.'”) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)).
Thus, “[w]here a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory
fee, ” which normally encompasses “all hours
reasonably expended on the litigation.”
Hensley, 461 U.S. at 435. To determine whether the
hours expended on the Motion were reasonable, this Court must
consider whether CX Re's request “includes hours
that were unnecessary or duplicative” or otherwise
excessive. Flores, 2016 WL 6780209, at *4.
as CX Re demonstrates, under Appendix B to this Court's
local rules, Rules and Guidelines for Determining
Attorneys' Fees in Certain Cases, most of its attorneys
and paralegal billed at rates which are presumptively
reasonable. Thus, the only remaining inquiry is to
determine whether 19.9 hours constitutes a reasonable amount
of time to expend on the litigation. While the matter was
contested, it, nonetheless, involved a straightforward
violation of Rule 36 and implicated no new issues of law.
See e.g., Ball-Rice v. Bd. of Educ. of Prince
George's Cty., No. CIV.A. PJM-11-1398, 2013 WL
2299725, at *2 (D. Md. May 24, 2013) (“If the party is
asserting that it cannot admit or deny due to lack of
knowledge or information, it must state that it has first
made a reasonable inquiry into the matter.”); Jones
v. Zimmer, No. 2:12-CV-01578-JAD, 2014 WL 6772916, at *6
(D. Nev. Dec. 2, 2014) (“As the disputed responses in
question fail to state that a reasonable inquiry was made,
they violate Rule 36.”); Tequila Centinela, S.A. de
C.V. v. Bacardi & Co., 242 F.R.D. 1, 15 (D.D.C.
2007) (holding that a party's responses were deficient
because the party failed to state that it made a
“reasonable inquiry” prior to finding
insufficient information to either admit or deny the RFAs).
Moreover, the dispute centered on only two RFAs, and CX
Re's Motion totaled only eight pages in length.
See [ECF No. 106]. Furthermore, as Streeter notes,
CX Re's Motion in this case parallels much of the Motion
to Deem Facts Admitted that CX Re filed on the same day in
its companion case against Devon Johnson, including an
identical Standard of Review Section. See CX Re v. Devon
Johnson, RWT-15-0132, [ECF No. 98 at 4-5]. CX Re,
however, contends that it drafted the Motion in this case
first, and then merely inserted the Standard of Review
section into the Johnson case, such that, had it
succeeded on its fee request in Johnson, “it
would not have sought from Johnson any of the fees that it
[now] seeks from Streeter.” [ECF No. 124 at 3 n.1].
Filing near identical motions on the same day in separate
cases with the same attorneys, however, supports an inference
that the hours expended in researching the matter were done
to benefit both cases. Finally, CX Re's schedule of fees
demonstrates that its attorneys ...