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PRA Financial Services, LLC v. AutoTrakk, LLC

United States District Court, E.D. Virginia, Norfolk Division

March 26, 2018

PRA FINANCIAL SERVICES, LLC, as an assignee of PRA Location Services, Plaintiff,
AUTOTRAKK, LLC, Defendant.



         This 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.


         Federal 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.

         An 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).[1] 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 omitted).


         A. An award of attorney's fees is proper because Federal Rule of Civil Procedure 37(a)(5)(A) is satisfied.

         Before 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.

         The 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 not forthcoming.

         Moreover, 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 to Compel.

         Federal 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.

         At the 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 ...

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