United States District Court, E.D. Virginia, Norfolk Division
PRA FINANCIAL SERVICES, LLC, as an assignee of PRA Location Services, Plaintiff,
AUTOTRAKK, LLC, Defendant.
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE.
memorandum order addresses Plaintiff PRA Financial Services,
LLC's ("Plaintiff) request for attorneys' fees
and costs related to preparing and arguing a Motion to Compel
(ECF No. 34). For the reasons stated on the record, pursuant
to Rule 37(a) of the Federal Rules of Civil Procedure, this
court granted the Plaintiffs Motion to Compel after a hearing
on February 16, 2018, ordering Defendant AutoTrakk, LLC
("Defendant") to respond to outstanding discovery
by February 21, 2018. (ECF No. 33). The court observed that
the Defendant had missed extended deadlines to produce
material, and despite promising responsive material in its
reply brief on the motion, had still failed to produce any
documents as of the hearing date. Accordingly,
Defendant's failure to timely produce documents was not
substantially justified and Plaintiff was prejudiced as a
result. Plaintiff thereafter filed a Memorandum in Support of
its Petition for Attorneys' Fees detailing the costs and
fees associated with filing and drafting the Motion to
Compel. (ECF No. 35). Defendant submitted its response on
March 8, 2018. (ECF No. 38). This court, after reviewing the
parties' briefing and exhibits, for the reasons set forth
below, concludes that Plaintiffs are entitled to
attorneys' fees and costs of $6, 050.00.
Rule of Civil Procedure 37(a) governs the payment of
attorney's fees and expenses in discovery disputes.
Specifically, Rule 37(a)(5)(A) provides that, if the court
grants a motion to compel discovery, "the court
must... require the party whose conduct necessitated
the motion to pay the movant's reasonable expenses
incurred in making the motion, including attorney's
fees." Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). The
award of expenses is mandatory unless one of Rule
37(a)(5)(A)'s three enumerated exceptions applies:
"(1) the movant filed a motion to compel prior to
attempting in good faith to obtain the discovery without
court intervention; (2) the nondisclosure or objection was
substantially justified; or (3) other circumstances make an
award of expenses unjust." Id.
award of expenses under Rule 37(a)(5)(A) must be reasonable.
Id. The court evaluates the reasonableness of
attorney's fees by first determining the
"lodestar" figure, which is defined as "a
reasonable hourly rate multiplied by hours reasonably
expended." Grissom v. Mills Corp., 549 F.3d
313, 320-21 (4th Cir. 2008). In determining what constitutes
a reasonable billing rate and number of hours, the Fourth
Circuit has directed courts to consider twelve 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.
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
243-44 (4th Cir. 2009). The lodestar method generates a
presumptively reasonable fee. Pennsylvania v. Delaware
Valley Citizens' Council for Clean Air, 478
U.S. 546, 564 (1986). It is within the court's
discretion, however, upon consideration of the lodestar
factors, to adjust the lodestar figure up or down. Lyle
v. Food Lion, Inc., 954 F.2d 984 (4th Cir.
1992). When requesting attorneys' fees, ''[t]he
moving party has the burden of 'establishing the
reasonableness of the requested amount both by showing the
reasonableness of the rate claimed and the number of hours
spent.'" Rutherford Controls Int'l
Corp. v. Alarm Controls Corp., No. 3:08cv369, 2009
WL 4015357 2009, at *2 (E.D. Va. Nov. 17, 2009) (citations
An award of attorney's fees is proper because Federal
Rule of Civil Procedure 37(a)(5)(A) is satisfied.
filing its Motion to Compel, Plaintiff made a good faith
effort to obtain requested discovery materials from the
Defendant. At the February hearing, Defendant primarily
argued that the good faith standard had not been met because
the Plaintiff did not specifically state it intended to file
a motion to compel in its letter requesting the overdue
discovery. But, as Plaintiffs counsel argued, this was only
one in a series of efforts to obtain compliance.
original Motion to Compel documented four written exchanges
prior to filing. (ECF No. 27 at 3). The Defendant either
ignored the communication or promised a response shortly. In
addition, Plaintiffs counsel stated that he had attempted to
reach opposing counsel by phone but without any return call.
The final correspondence before the motion, on December 22,
2017, advised that responses were then over a month past the
already-extended deadline, and warned that Plaintiff would
"seek assistance from the court" if answers were
the Defendant never indicated that it did not intend to
comply, rather repeatedly promising - even during briefing on
the motion - that responses were forthcoming. (ECF No. 26 at
3) ("Defendant ... is prepared to provide full and
complete responses to Plaintiffs discovery on or before
January 31, 2018."). Yet on the date of the hearing,
February 16, 2018, more than two weeks after the latest
promised date of compliance, Defendant had still produced no
documents in response to discovery originally due November 9,
2017. Plaintiffs efforts to resolve the case before turning
to the court for relief were more than sufficient. This
court, therefore, concludes that Plaintiff did make a good
faith effort to resolve the dispute before filing the Motion
Rule of Civil Procedure 37(a)(5)(A)(ii) prohibits courts from
imposing attorney's fees on a party who failed to comply
with discovery procedure if its nondisclosure was
"substantially justified." Fed.R.Civ.P.
37(a)(5)(A)(ii). "A party satisfies the
'substantially justified' standard 'if there is a
genuine dispute as to proper resolution or if a reasonable
person could think that the failure to produce discovery is
correct, that is, if it has a reasonable basis in law and
fact." Sky Cable. LLC v. Coley, No.
5:11CV00048, 2015 U.S. Dist. LEXIS 106393, at *8 (W.D. Va.
Aug. 12, 2015). Here, Defendant failed to comply with its
obligation to timely respond to Plaintiffs discovery
requests, and there is no "genuine dispute" which
justifies the noncompliance. The Defendant did not object to
Plaintiffs discovery or state that it was withholding
documents because of its objections as required by Federal
Rule of Civil Procedure 34 and Local Rule 26(c). Id.
It simply did not produce any documents.
hearing, counsel argued that there were intra-corporate
issues related to which AutoTrakk entity controlled the
documents Plaintiff sought, but these were addressed in part
during earlier proceedings. And counsel never expressed such
concerns to explain the earlier missed deadlines. In short,
Defendant has offered no substantial justification for its
failure to comply with ...