United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON DISCOVERY-RELATED MOTIONS
MARK J. DINSMORE, Magistrate Judge.
This matter comes before the Court on several discovery-related motions. Matthew Slabaugh and Bobbie Slabaugh ("Plaintiffs") move for attorney's fees and expenses [Dkt. 100] associated with their successful motion to compel [Dkt. 94]. Plaintiffs also move for the Court to sanction Defendant LG Electronics USA, Inc. ("LG USA") [Dkt. 119] and to strike portions of LG USA's response to Plaintiff's motion for sanctions [Dkt. 133]. LG USA, in turn, moves for reconsideration of the Court's orders granting Plaintiff's motion to compel [Dkt. 94] and overruling LG USA' objection to such ruling [Dkt. 130]. [Dkt. 137.] LG USA also moves to file a surreply to Plaintiffs' motion for fees and expenses [Dkt. 112.] and to compel Plaintiffs to respond to LG USA's discovery requests [Dkt. 157], and Plaintiffs request that a hearing be held on such motion to compel and other pending motions as necessary [Dkt. 165].
For the following reasons, the Court hereby GRANTS Plaintiffs' motion for fees and DENIES Plaintiffs' motion for sanctions. Additionally, the Court GRANTS LG USA's motion to file their surreply and DENIES Plaintiffs' motion to strike. Finally, the Court GRANTS Plaintiffs' motion for a hearing on the motions that remain before the Court.
Plaintiffs' case against Defendant LG USA involves claims for negligence and strict products liability. [Dkt. 85 at 23-25.] In June of 2011, Plaintiffs' home suffered water damage, allegedly caused by defective components in their LG brand washing machine. [ Id. ] After pursuing out-of-court remedies, Plaintiffs filed suit in state court in June of 2012, and their case was removed to this Court in July of 2012. [Dkt. 67 at 4.] Plaintiffs served their interrogatories and requests for production that same month, to which LG USA did not respond until November of 2012. [ Id. at 1-2.] Plaintiffs believed LG USA's responses to be insufficient, and their second and third attempts to supplement their responses did not rectify the insufficiencies. [ Id. at 2.] Thus, Plaintiffs moved for the Court to compel LG USA to respond to Plaintiffs' written discovery requests [Dkt. 66], which motion this Magistrate Judge granted in its entirety on September 5, 2013 [Dkt. 94]. LG USA then filed an objection to the Magistrate Judge's order [Dkt. 98], which objection the District Judge overruled in its entirety on November 26, 2013 [Dkt. 130].
Meanwhile, in September of 2013 Plaintiffs moved to be reimbursed for their attorney's fees and expenses related to their motion to compel, pursuant to Federal Rule of Civil Procedure 37. [Dkt. 100.] Asserting that Plaintiffs' reply brief to their motion for fees and expenses raised additional arguments, LG USA filed a motion for leave to file a surreply in order to address those additional arguments. [Dkt. 112.] By November of 2013, Plaintiffs were still not satisfied with LG USA's fourth attempt at written discovery responses, and Plaintiffs subsequently filed a motion for sanctions against LG USA. [Dkt. 119.] Further, asserting that LG USA included impermissible material in its response to their motion for sanctions, Plaintiffs moved strike portions of LG USA's response brief. [Dkt. 133.] In December of 2013, Defendant LG USA informally indicated to the Court that Defendants LG USA and LG Korea would be "admitting [to] liability for the purported discharge of water from the washer." [Dkt. 152 at 5 (incorrectly asserting that the status conference was a "hearing" that was "on the record").] Believing that the discovery requested by Plaintiffs is no longer relevant because of this alleged stipulation to liability, LG USA moved for reconsideration of the Court's orders on Plaintiffs' motion to compel. [Dkt. 137.] Defendant LG USA additionally moved to compel Plaintiffs' discovery responses [Dkt. 157] and for a hearing on such motion to compel as well as the other motions pending in this matter [Dkt. 165]. The Court now addresses the parties' various discovery-related motions.
The general rule is that the district court has "broad discretion in discovery matters." Packman v. Chicago Tribune Co. , 267 F.3d 628, 646 (7th Cir. 2001) (citing Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1056 (7th Cir. 2000)). This broad discretion in discovery matters encompasses cases concerning claims of products liability and negligence. See Gingerich v. City of Elkhart Prob. Dep't, 273 F.R.D. 532, 536 (N.D. Ind. 2011) (negligence); Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993) (products liability).
A. Motions for Fees and Surreply
Pursuant to Rule 37, after granting a motion to compel disclosure or discovery "the court must... require [the losing party or attorney or both] to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed.R.Civ.P. 37(a)(5)(A). Reasonable attorney's fees are equal to a reasonable rate multiplied by the number of hours reasonably expended on the motion-a calculation known as the "lodestar"-and "nothing else." Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012). The rate actually charged by the prevailing attorney is the rate to which the prevailing party is presumptively entitled, regardless of whether the attorney may charge a rate above or below the market average. Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir. 1993). When the market average is needed, it is the burden of the fee applicant to establish the appropriate market average, or else the Court will determine an appropriate rate. Johnson, 668 F.3d at 933. With regard to factor of the amount of hours reasonably expended, the district court is given exceptional discretion when determining whether the time an attorney spends on a motion before the judge is reasonable. Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 659 (7th Cir. 2007).
Here, Plaintiffs' motion for fees is succinct, alleging that Plaintiffs' counsel expended 28.6 hours at the rate of $250 per hour, plus $23.80 in PACER expenses, in their successful motion to compel, thus entitling them to $7173.80 in fees in expenses. [Dkt. 100.] In response, LG USA asserts that Plaintiffs did not meet their burden of proving both that the rate charged and the time expended are reasonable, and LG USA believes that the proper recourse for this alleged failure is to deny attorney's fees entirely. [Dkt. 101.] Plaintiffs' reply brief adds significant support to their initial motion for fees and expenses, including market average affidavits, and requests that the market average of $330 per hour be multiplied by the now 31.5 hours spent on this issue, plus the PACER expenses, for a total of $10, 418.80. [Dkt. 105.] In light of this additional evidence and amended request, LG USA filed an unopposed motion for leave to file a surreply [Dkt. 112], which the Court GRANTS, asserting that Plaintiffs' reply brief cannot cure their failure to meet their burden of proof and that the Plaintiffs cannot amend their original rate of relief requested [Dkt. 112-1].
To begin addressing these arguments, the Court first reiterates that, where an attorney petitioning for fees does not meet his burden of proof, it is not the proper recourse to deny the fee request altogether; the duty falls to the Court to grant whatever fees the Court deems reasonable. Johnson, 668 F.3d at 933. With regard to the rate requested, Gusman is clear in its ruling that the amount commonly charged by the attorney is presumptively reasonable, regardless of whether the market average is higher or lower. In this matter, Plaintiffs' counsel is working on a contingency basis [Dkt. 105 at 2]; however, when he charges by the hour, Plaintiffs' counsel charges an hourly rate of $250 per hour [Dkt. 100 at 2]. The hourly rate charged by the prevailing attorney is presumptively reasonable, and the Court finds the hourly rate of $250 per hour to be reasonable. Thus, it is not necessary to examine whether the alleged market rate of $330 per hour also lies within reason, as the reasonable rate of $250 per hour will be used to calculate the lodestar.
LG USA also argues that the amount of hours that Plaintiffs' counsel allegedly spent working on the motion is not reasonable. [Dkt. 101 at 4-8.] Specifically, LG USA asserts that the briefs contained primarily facts and included little to no citations to case law and requests that the Court reduce the number of hours expended in calculating the lodestar. [ Id. ] In support of this request, LG USA cites to several cases in which the court found the number of hours allegedly spent on the motion to be unreasonable, and LG USA further claims that these cases represent "a majority of cases within the Seventh Circuit." [ Id. at 6-7.] The validity of this claim is not relevant, however, as it is the duty of the Court to examine the reasonableness of the allegations in the motion before it, not to make a finding based on allegations that have been brought before other courts within the Seventh Circuit. Further, as Plaintiffs point out in their reply brief, even when those courts reduced the amount of fees requested for lack of substantive brief, it was still reasonable to allow roughly one page of briefing per hour of work alleged. See, e.g., Maxwell v. S. Bend Work Release Ctr., 3:09-CV-008-PPS-CAN, 2010 WL 4318800 (N.D. Ind. Oct. 25, 2010) (7.4 hours reduced to 3.5 hours for a three-page brief with no case law); Lorillard Tobacco Co. v. Elston Self Serv. Wholesale Groceries, Inc., 259 F.R.D. 323, 330 (N.D. Ill. 2009) (at least 30 hours-over $16, 000 at a rate of $270 to $473 per hour-reduced by one half for two motions totaling nine pages of non-complex legal and factual issues); Arrington v. La Rabida Children's Hosp., 06 C 5129, 2007 WL 1238998 (N.D. Ill. Apr. 25, 2007) (1.8 hours reduced to 1 hour to draft a petition for attorney's fees that was one page long, and 3.5 hours reduced to 1 hour to draft a three-page brief with no case law).
Here, Plaintiffs' counsel tabulates expending 17.3 hours on his three-page motion to compel and eighteen-page brief in support thereof [Dkts. 66, 67]; 8.5 hours on his seven-page reply brief [Dkt. 79], including his review of LG USA's nineteen-page opposition brief [Dkt. 69]; 1.8 hours to prepare for and attend a 45-minute-long long hearing on June 21, 2013; 1 hour to review the Court's order granting the motion to compel and prepare his two-page motion for attorney's fees [Dkt. 100]; and now 2.9 hours on his eight-page reply brief [Dkt. 105], including his review of LG USA's nine-page opposition brief [Dkt. 101]. The Court finds these 31.5 hours to be reasonable, which figure is to be multiplied by the reasonable rate of $250 per hour, for a total lodestar of $7875, plus $23.80 in PACER expenses. Thus, Plaintiffs' request for attorney's fees is GRANTED, and Defendant LG ...