Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Scott v. Clarke

United States District Court, W.D. Virginia, Charlottesville Division

April 15, 2014

CYNTHIA B. SCOTT, ET AL., Plaintiffs,
HAROLD W. CLARKE, ET AL., Defendants.


NORMAN K. MOON, District Judge.

Plaintiffs filed a motion to compel discovery. The matter was briefed and heard and, upon finding that the Virginia Department of Corrections Defendants (the "Defendants, " or the "VDOC Defendants")[1] had improperly refused to produce documents to Plaintiffs, I granted the motion. See docket nos. 88, 89. Additionally, I granted Plaintiffs' request, pursuant to Federal Rule of Civil Procedure 37(a)(5)(A), to recover reasonable expenses and attorney's fees incurred in the preparation and filing of the motion to compel, and I directed Plaintiffs to file a detailed petition, which has been filed and fully briefed by the parties.

Defendants do not present any specific, substantive objections to the merits of the petition, other than to state in passing that they "do not perceive their Objections [to the motion to compel] to be so unique or so complicated that Plaintiffs were required to expend up to 16.75 hours of legal research in order to respond"; otherwise, Defendants state that, "[i]n general, VDOC Defendants do not challenge" the 45.90 hours for which Plaintiffs seek attorney's fees, "except to state that there was not anything particularly novel or difficult about Plaintiffs' challenge to VDOC Defendants' Objections to producing documents... on the basis of relevancy." Nor do Defendants object to the reasonableness of the hourly fees claimed pursuant to the "lodestar" calculation; indeed, their response to the fee petition characterizes the fees requested as "reasonable." Rather, Defendants assert that attorney's fees in this matter are capped by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. However, Defendants' invocation of the PLRA is misguided; by its own terms, the PLRA does not apply to attorney's fees awarded as a discovery sanction pursuant to Fed.R.Civ.P. 37. Accordingly, as further elaborated herein, I will grant the petition, and I will award fees in a total amount of $15, 980.00.


Plaintiffs' fee petition seeks the recovery of $20, 399.00 in attorney's fees from Defendants for the preparation, submission, and argument of the motion to compel discovery, seeking the production of documents improperly withheld by Defendants. Plaintiffs base this fee amount on a "lodestar" calculation, multiplying a reasonable hourly rate by the number of hours reasonably expended, see, e.g., Eastern Assoc. Coal Corp. v. Director, OWCP , 724 F.3d 561, 569-70 (4th Cir. 2013) (citations omitted), and incorporating the twelve factors originally identified in Johnson v. Georgia Highway Express, Inc. , 488 F.2d 714, 717-19 (5th Cir. 1974); see also Eastern Assoc. Coal Corp. , 724 F.3d at 570 n. 5 (setting forth the twelve Johnson factors, as cited in Hensley v. Eckerhart , 461 U.S. 424, 429-30 n. 3 (1983), and noting that, in accordance with Perdue v. Kenny A. , 559 U.S. 542, 553 (2010), double-counting any of the twelve factors that have already been incorporated into the lodestar analysis would distort the proper weight to be accorded to those factors).[2]

Plaintiffs state that Theodore Howard, a partner with the law firm Wiley Rein LLP, and Cori Lombard, an associate with the firm, researched and drafted Plaintiffs' briefing of the motion. According to Mr. Howard's Declaration, he has been engaged in the private practice of law in Washington, D.C. since 1981, that since 1989 "a significant part of [his] legal practice has involved the pro bono representation of incarcerated individuals seeking to challenge the constitutionality of various conditions of confinement pursuant to actions brought in federal courts under 42 U.S.C. § 1983." He adds that Ms. Lombard was a summer associate at Wiley Rein LLP in 2008, during which term she contributed to the firm's pro bono involvement in a prisoner civil rights project dealing "with Section 1983 litigation in general and prisoners' conditions-of-confinement claims in particular, " and she joined Wiley Rein LLP as a full-time associate in January 2011.

The petition states that Mr. Howard's standard billing rate is $640.00 per hour, and Ms. Lombard's standard billing rate is $420.00 per hour. However, Plaintiffs seek recovery of their reasonable attorney's fees based upon the United States Attorney's Office for the District of Columbia's Adjusted Matrix (the "Adjusted Matrix"). Under the Adjusted Matrix, Plaintiffs calculate an hourly rate of $510.00 for Mr. Howard and an hourly rate of $295.00 for Ms. Lombard.[3]

Plaintiffs state that "a total of 100.70 hours were expended from the point at which the VDOC Defendants' written Objections to Plaintiffs' Document Requests were served on July 23, 2013 through November 21, 2013, the date of the hearing on the Motion." Plaintiffs then exclude 54.80 hours from the total, leaving 45.90 hours as time reasonably expended on researching, briefing, and arguing their motion. Of those 45.90 hours, Plaintiffs state that Mr. Howard performed 31.90 hours of work while Ms. Lombard performed 14 hours of work.

Plaintiffs ask me to consider and weigh the twelve Johnson factors when determining the reasonableness of the hourly rates for which recovery is sought. The factors that Plaintiffs specifically address are the novelty and difficulty of the question raised ( Johnson factor no. 2); the customary fee for like work ( Johnson factor no. 5); and the experience, reputation, and ability of the attorneys ( Johnson factor no. 9). In particular consideration of the novelty and difficulty of the question raised, Plaintiffs state that, "[w]hile there is nothing necessarily either novel' or difficult' about challenging an adversary party's refusal to respond to a discovery request on the basis of a relevancy' objection in the abstract, " the motion to compel "was not a routine undertaking" because of the complex nature of their Eighth Amendment claims, the "critically important nature of the discovery sought, " and "the VDOC Defendants' complete failure to explain or provide support for the asserted Objections." Plaintiffs further state that, because Defendants failed to identify any authority in support of their objections and merely "insisted that they were on solid ground' in adhering to the relevancy' Objections they interposed, " "Plaintiffs' counsel were obligated to conduct exhaustive legal research" to support their own affirmative arguments for the motion to compel as well as "to protect against any existing decisions supportive of the VDOC Defendants' position which the VDOC Defendants' counsel may have declined to identify for strategic reasons." Plaintiffs contend that such research by Mr. Howard and Ms. Lombard represented "a significant component of the time incurred" by them, and that this "could have been avoided but for the VDOC Defendants' unprincipled and unfounded contentions - a circumstance that became clear" once Defendants' opposition was filed, and it " includ [ed] not a single citation to any supporting caselaw ."


Defendants contend that, because Plaintiffs are prisoners, "this lawsuit is governed by the Prison Litigation Reform Act (PLRA'), 42 U.S.A. § 1997e" and, from this premise, Defendants leap to the conclusion that "the hourly rate for Plaintiffs' attorneys' fees is set by the PLRA." Were the PLRA applicable, Theodore Howard's rate would be capped at $187.50, and Cori Lombard's rate would be capped at $123.50. See 42 U.S.C. § 1997e(d)(3) (under the PLRA, "[n]o award of attorney's fees... shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 30006A of Title 18 for payment of court-appointed counsel"). However, a straightforward reading of the provisions of the PLRA cited by Defendants establishes that the PLRA fee limitations have no applicability to the fees awarded here as sanctions for Defendants' misconduct regarding discovery.

Section 1997e(d) of Title 42, regarding awards of attorney's fees made to a prevailing party in an action challenging prisoners' conditions of confinement in connection with the entry of an order or the consummation of a settlement resulting in the grating of relief on the merits, states the following:

(d) Attorney's fees. (1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under [42 U.S.C. § 1988], such fees shall not be awarded, except to the extent that-
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under section ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.