United States District Court, D. South Dakota, Southern Division
ORDER GRANTING ATTORNEY'S FEES [PLAINTIFF'S
MOTION TO COMPEL, DOCKET NO. 23]
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
matter is pending before the court on plaintiffs Scott and
Lynda Hoffman's (“the Hoffmans”) amended
complaint [Docket No. 12] alleging strict products liability
and negligent infliction of emotional distress against
defendants, MJC America, Ltd. and Gree, USA, Inc. (“MJC
and Gree USA.”) The Hoffmans filed a motion to compel
MJC and Gree USA to produce their Rule 26(a) initial
disclosures, Docket No. 23, and the district court, the
Honorable Lawrence L. Piersol, referred that motion to this
magistrate judge for determination pursuant to 28 U.S.C.
§ 636(b)(1)(A). See Docket No. 26. Defendants
MJC and Gree USA failed to even respond to the Hoffmans'
court granted the Hoffmans' motion [Docket No. 29]. They
now move for sanctions in the form of attorneys fees in the
amount of $8, 462.51 for 38.1 hours' worth of work by
three attorneys and a paralegal. See Docket No. 34.
Defendants have not filed any objections to the amount
Lodestar Method of Determining Reasonable Award of
Federal Rule of Civil Procedure directs the award of
attorney's fees in successful motions to compel (in the
usual case), the court must still evaluate the Hoffmans'
request for attorney's fees to determine whether it is
reasonable. In determining a reasonable award of
attorney's fees under Rule 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 is on the moving
party to prove that the request for attorney's fees is
reasonable. Tequila Centinela, S.A. de C.V., 248
F.R.D. at 68; Creative Resources Group,
Inc., 212 F.R.D. at 103; Kayhill, 197
F.R.D. at 459.
Reasonable Hourly Rate
reasonable hourly rate is usually the ordinary rate for
similar work in the community where the case is being
litigated. Tequila Centinela, S.A. de C.V., 248
F.R.D. at 68 (citing Laffy v. Northwest Airlines,
Inc., 746 F.2d 4, 16 (D.C. Cir. 1984) (hourly rate must
be sufficient to attract competent counsel, but not so
excessive as to produce a windfall, and generally must be in
line with rates charged by other attorneys of comparable
skill, reputation, and ability within the community.) In this
case, the Hoffmans have submitted a request for
attorney's fees based on a normal hourly rate of $350.00
per hour for attorney Steven Johnson, $250 per hour for
attorney Shannon Falon, and $200 per hour for attorney
Anthony Sutton. See Docket No. 34 at p.2. The
Hoffmans request $95 per hour for paralegal Jennifer
Pravecek's time. Id.
has not submitted information about the prevailing hourly
attorney rates in the District of South Dakota. The court can
determine those rates based on its own knowledge of
prevailing rates here. See Creative Resources Group,
Inc., 212 F.R.D. at 103-104 (holding that “it is
within the judge's discretion to determine reasonable
fees based on his or her knowledge of prevailing community
rates”). The court concludes on the basis of its own
knowledge of prevailing rates in the District of South Dakota
and also based on recent awards of attorney's fees that
the rates quoted are reasonable hourly rates for these
attorneys' and paralegal's time.
court must also determine whether the number of hours spent
by the Hoffmans' attorneys was reasonable. Here, the
Hoffmans request 38.1 hours of attorney and paralegal time in
connection with their motion to compel. See Docket
No. 34-1 at p. 2.
courts have held that 30 and 21 hours spent in researching
and drafting a discovery motion were a disproportionate
amount of time for the nature of the dispute. See
Criterion 508 Solutions, Inc. v. Lockheed Martin Services,
Inc., 255 F.R.D. 489, 496 (S.D. Iowa 2008); Foxley
Cattle Co. v. Grain Dealers Mut. Ins. Co., 142 F.R.D.
677, 680 (S.D. Iowa 1992).
district, this court has approved requests for attorney's
fees ranging from $1, 041.45 to $1, 509.97 for
run-of-the-mill motions to compel. See Heil v.
Angie's Inc., Civ. No. 09-5074, Docket No. 68 (Sept.
1, 2011 D.S.D.) ($1, 041.45 awarded for 4.8 hours of work);
Howard Johnson Internat'l. Inc. v. Inn Development,
Inc., Civ. No. 07-1024, Docket No. 73 (June 23, 2008
D.S.D.) ($1, 453.50 awarded for 9.1 hours of work);
Oyen, Civ. No. 07-4112, Docket Nos. 56 and 62 (Feb.
6 & Mar. 3, 2009 D.S.D.) ($1, 509.97 awarded to defendant