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Gary W. Page and Lorie Page v. Hertz Corporation; Hertz

January 20, 2012

GARY W. PAGE AND LORIE PAGE, PLAINTIFF,
v.
HERTZ CORPORATION; HERTZ RENT A CAR, AND KAREN S. KNIPPLE, DEFENDANTS.



The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART HERTZ'S REQUEST FOR ATTORNEY'S FEES

INTRODUCTION

This matter is before the court pursuant to a complaint alleging negligence and strict liability by plaintiffs Gary and Lorie Page, husband and wife, against defendants arising out of an August 6, 2009, motor vehicle accident in South Dakota. See Docket No. 1. Previously, this court granted in part and denied in part a motion for sanctions or, in the alternative, to compel, filed by Hertz Corporation and Hertz Rent A Car (collectively "Hertz"). See Docket No. 60. Now presented for the court's determination is the matter of the attorneys fees to be awarded to Hertz as a result of their partially successful motion.

FACTS

The facts pertinent to the motion pending before this court are as follows. Gary and Lorie Page reside in Hillsdale, Ontario, Canada. On August 6, 2009, Gary Page was operating a motorcycle on Interstate 90 near Piedmont, South Dakota, when he was involved in an accident with Karen Kipple, who was operating a motor vehicle owned by Hertz. See Docket No. 1 at ¶¶ 10-11. As a result of the accident, Mr. Page asserts that he suffered and sustained numerous injuries, among which were a permanent traumatic brain injury. See Docket No. 53 at pages 27-28. Mr. Page's expert, Dr. Kurzman, issued an opinion supporting this latter assertion of injury.

By mutual agreement, Hertz, arranged for Mr. Page to undergo an independent medical neuropsychological evaluation ("IME") with an expert chosen by Hertz, Dr. Gregory Thwaites, in Colorado. The IME with Dr. Thwaites was to take place on May 27, 2011. See Docket No. 53 at page 31. Hertz paid for Mr. Page's transportation and lodging in connection with this trip.

Although Mr. Page reported to Dr. Thwaites' office for the IME on May 27, he left shortly after making contact with Dr. Thwaites and refused to undergo the IME. Mr. Page thereafter refused requests by Hertz to reschedule the IME with Dr. Thwaites. After unsuccessfully exploring different options to obtain the IME, Hertz filed its motion for sanctions or, in the alternative, to compel. See Docket No. 42.

This court granted Hertz's motion in part and denied it in part. See Docket No. 60. The court granted Hertz's request that Mr. Page submit to an IME with Dr. Thwaites at Mr. Page's own expense and to reimburse Hertz for the $4,750.00 Dr. Thwaites charged Hertz for the aborted May 27, 2011, examination. Id. The court ordered Mr. Page to turn over in discovery the raw data from his own neuropsychological assessment by his own doctor, Dr. Kurzman. Id. The court denied Hertz's request to dismiss the Pages' complaint or to bar the Pages from introducing at trial evidence of Mr. Page's brain injury. Id.

As sanctions for not providing the requested discovery, the court indicated it would entertain awarding reasonable attorney's fees to Hertz for having to bring the motion. Id. Hertz has now filed affidavits in support of its request for attorneys fees as follows: $2,012.50 for attorney Gene Bushnell, representing 11.5 hours of his time at a rate of $175 per hour; $7,470.00 for attorney Stephen Hoffman, representing 49.8 hours of his time at a rate of $150 per hour; and $727.50 for paralegal Victoria Kelner, representing 9.7 hours of her time at a rate of $75 per hour. See Docket Nos. 64, 65, and 66. The total in attorney's fees and paralegal's fees requested by Hertz is $10,210.

Although the court afforded plaintiffs the opportunity to oppose Hertz's request for attorneys fees, plaintiffs have not done so. Hertz filed its affidavits in support of its request for attorneys fees on December 5, 2011. Id. The Pages had 14 days to oppose those affidavits by lodging objections to the hourly rate, the time spent, or any factual matter. See Docket No. 60. As of the writing of this opinion, the Pages have not so responded.

DISCUSSION

A. Lodestar Method of Determining a Reasonable Award of Attorney's Fees

The court must evaluate Hertz's request for attorney's fees to determine whether it is reasonable, even in the absence of objection by the opposing party. In determining a reasonable award of attorney's fees under Fed. R. Civ. P. 37, the court begins by figuring the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates. Finley v. Hartford Life & Accident Ins. Co., 249 F.R.D. 329, 332-33 (N.D. Cal. 2008); Tequila Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 248 F.R.D. 64, 68 (D.D.C. 2008); Creative Resources Group of New Jersey, Inc. v. Creative Resources Group, Inc., 212 F.R.D. 94, 103 (E.D.N.Y. 2002); Kayhill v. Unified Gov't. of Wyandotte County, 197 F.R.D. 454, 459 (D. Kan. 2000); and Trbovich v. Ritz-Carlton Hotel Co., 166 F.R.D. 30, 32 (E.D. Mo. 1996). The burden ...


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