United States District Court, W.D. Virginia, Abingdon Division
Paul
A. Thomas, Trial Attorney, National Labor Relations Board,
Washington, D.C., for Petitioner
Daniel
R. Bieger, Dan Bieger, PLC, Bristol, Tennessee, for
Respondent Cobalt Coal Ltd.
OPINION AND ORDER
JAMES
P. JONES, UNITED STATES DISTRICT JUDGE
The
petitioner in this matter, the National Labor Relations Board
(“NLRB”), brings an Application for Attorney Fees
to recover fees pursuant to Federal Rule of Civil Procedure
37(a)(5)(A) from respondent Cobalt Coal Ltd.
(“Cobalt”) relating to the attorney's fees
the NLRB incurred in making its motion to compel Cobalt to
produce documents, which I granted. Cobalt contends that the
NLRB's motion to compel was unnecessary, and therefore
the court should not award attorney's fees. For the
reasons that follow, I will grant the NLRB's application.
I.
The
NLRB moved to compel Cobalt to produce documents in response
to the NLRB's First and Second Requests for Production of
Documents, and I granted the motion, ordering Cobalt to
produce all documents responsive to the requests for
production at issue. I further granted costs and
attorney's fees to the NLRB and ordered that the NLRB
submit a certified statement of the costs and reasonable
expenses, including attorney's fees, that it incurred as
a result of Cobalt's noncompliance with its discovery
obligation. I also ordered that following the NLRB's
submission, Cobalt “shall submit a brief in opposition
to any of the costs claimed by the Board; failure to submit a
specific opposition to any claimed cost or expense shall
constitute an admission that the claimed cost or expense is
appropriately awarded.” Order Compelling Disc. 2, ECF
No. 17.
The
NLRB then filed its Application for Attorney Fees, requesting
fees for a total of 21.2 hours of time attributable to
Cobalt's failure to comply with its discovery
obligations. The NLRB requests that its fees be calculated
using hourly rates established in a matrix prepared by the
United States Attorney's Office for the District of
Columbia (“USAO”) to evaluate requests for
attorney's fees in civil cases in District of Columbia
courts.[1] Using the rates in the USAO matrix, the
NLRB requests a total of $7, 503.20 in attorney's fees.
Cobalt's response to the NLRB's application contends
that the NLRB's motion to compel was unnecessary, and
therefore no attorney's fees should be awarded.
The
issues have been fully briefed and are ripe for decision.
II.
A party
may move for an order compelling discovery after attempting
in good faith to obtain discovery without court action.
Fed.R.Civ.P. 37(a)(1). The court may issue the order when the
opposing party has failed to produce documents or has
provided an evasive or incomplete response, among other
things. See Fed. R. Civ. P. 37(a)(3). If the court
grants a motion for an order compelling 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, unless the
movant filed the motion before attempting in good faith to
obtain the discovery without court action, the opposing
party's nondisclosure was substantially justified, or
other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(5)(A).
Here, I
granted the NLRB's motion to compel Cobalt to produce
documents, along with attorney's fees for the expenses it
incurred in making the motion, because of Cobalt's
failure to fully engage in discovery without justification
and despite the NLRB's multiple attempts to obtain the
discovery without court action. Cobalt's contention that
the NLRB's motion to compel was unnecessary, and thus the
court should not award attorney's fees, is unfounded. The
documents Cobalt states that it produced prior to the
NLRB's motion did not satisfy the discovery requests at
issue. Cobalt satisfied these requests only after the
court's order compelling production. Moreover, Cobalt did
not substantially justify its failure to produce the
requested documents. Accordingly, I will turn to the amount
of attorney's fees I will award.
“The
initial estimate of a reasonable attorney's fee is
properly calculated by multiplying the number of hours
reasonably expended on the litigation times a reasonable
hourly rate.” Blanchard v. Bergeron, 489 U.S.
87, 95 (1989).[2] The court may then adjust this initial
calculation by looking to the twelve factors set forth in
Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974) to reach a final reasonable
attorney's fee. Jackson v. Estelle's Place,
LLC, 391 Fed.Appx. 239, 244-45 (4th Cir. 2010)
(unpublished).
The
reasonable hourly rate is typically determined by looking to
the “prevailing market rates in the relevant
community.” Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 175 (4th Cir. 1994). “The
relevant market for determining the prevailing rate is
ordinarily the community in which the court where the action
is prosecuted sits.” Id. However, the court
may consider rates charged by attorneys in other communities
when “the complexity and specialized nature of a case
may mean that no attorney, with the required skills, is
available locally, and the party choosing the attorney from
elsewhere acted reasonably in making the choice.”
Id. at 179 (quoting Nat'l Wildlife Fed'n
v. Hanson, 859 F.2d 313, 317 (4th Cir. 1988)). When the
relevant market is Washington, D.C., the USAO matrix is a
reasonable measure of hourly rates. Covington v. District
of Columbia, 57 F.3d 1101, 1109 (D.C. Cir. 1995).
The
NLRB requests that its fees be calculated using the hourly
rates established in the USAO matrix. In doing so, it asserts
that the court should consider rates charged by attorneys in
Washington, D.C., when determining the reasonable hourly rate
in this matter. Cobalt's response to the NLRB's fee
...