United States District Court, E.D. Virginia, Alexandria Division
THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Plaintiff Diversified
Lending, LLC's Motion for Award of Legal Fees and
Expenses (Dkt. 22). Plaintiff seeks to recoup fees and
expenses incurred in connection with its Motion for Contempt
(Dkt. 8) and Motion for Sanctions (Dkt. 12). As stated in the
Court's order of December 14, 2018, much of the relief
sought by Plaintiff in its Motion for Sanctions is now moot
(Dkt. 21). However, the Court still allowed Plaintiff to file
a statement of fees and costs incurred in connection with
this matter within seven (7) days, which Plaintiff has done.
Defendant did not lodge an objection with Plaintiffs request.
Now, the undersigned addresses and awards, in part,
Plaintiffs request for attorney's fees and costs.
Rule of Civil Procedure 37(a)(5)(A) provides that, if a court
grants a motion to compel, then "the court must...
require the party or attorney advising that conduct, or both
to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees."
Fed.R.Civ.P. 37(a)(5)(A). Therefore, should a court grant a
motion to compel, it may only decline to award reasonable
expenses if one of a limited number of exceptions apply.
Plaintiff did not file a motion to compel pursuant to Rule
37(a)(5). Instead, Plaintiff filed a Motion for Contempt
pursuant to Rule 45(g). However, this Court treated Plaintiffs
Motion as a motion to compel. The Court only granted
Plaintiffs Motion in part, ordering Defendant to comply with
the subpoena and turn over other necessary documents, and
declined to hold Defendant in contempt. (Dkt. 11.)
Additionally, the Court warned Defendant that failure to
comply with the Court's order could result in sanctions
pursuant to Rule 37. (Id.) Accordingly, the Court
will evaluate Plaintiffs request for fees and expenses
incurred filing its contempt motion under Rule 37(a). Because
the Court finds that none of Rule 3 7(a)'s enumerated
exceptions apply, the Court shall award Plaintiff
attorney's fees upon a determination that the fees are
Court finds that Plaintiffs counsel reasonably spent 7 total
hours in connection with its motion, consisting of 3.1 hours
by Bryan M. Mull and 3.9 hours by David S. Musgrave. (Dkt.
22-2 at 3.). Mr. Mull is an associate and his hourly billing
rate in this case is $370. (Id. at 7.) Mr. Musgrave
is a partner and his hourly billing rate in this case is
$570. (Id.) After reviewing counsel's itemized
time entries as well as the twelve factors to be considered
when determining the reasonable billing rate and hours,
see Robinson v. Equifax Info. Servs., LLC, 560 F.3d
235, 243-44 (4th Cir. 2009), the Court finds that Defendant
should be awarded $3, 175 in attorney's fees. The Court
declines to award Plaintiff fees for counsel's
correspondence. Rule 37(a) allows an award of fees and
expenses incurred in "making the motion." A
substantial number of the entries under the correspondence
category possess only a tangential connection to drafting and
arguing Plaintiffs Motion. Therefore, it is unreasonable to
award those fees.
terms of sanctions, Rule 37(b)(2)(C) states that should a
court find that a party has failed to obey a discovery order,
"the court must order the disobedient party ... to pay
the reasonable expenses, including attorney's fees,
caused by the failure." Fed.R.Civ.P. 37(b)(2)(C). A
court may only decline to award expenses if "the failure
was substantially justified or other circumstances make an
award of expenses unjust." Id. Additionally,
even though this case involves post-judgment discovery, a
court "has the authority under Rule 37 to impose
sanctions for failing to comply with appropriate discovery
requests made in aid of the judgment or execution of the
judgment." Va. Brands. LLC v. Kingston Tobacco Co.
Inc., No. 4:10-cv-00009, 2013 WL 1249070, at *3 (W.D.
Va. Mar. 26, 2013) (citations omitted).
awarding sanctions under Rule 37(b), a court must also
consider "(1) whether the non-complying party acted in
bad faith, (2) the amount of prejudice that noncompliance
caused the adversary, (3) the need for deterrence of the
particular sort of non-compliance, and (4) whether less
drastic sanctions would have been effective."
Anderson v. Found, for Advancement. Educ. and Emp't
of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998).
However, in terms of awarding attorney's fees and costs
under 37(b)(2)(C), the Fourth Circuit is not entirely clear
on whether a court must in fact make a finding of bad faith.
See S. States Rack & Fixture. Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 597-98 (4th Cir.
2003) (holding that a bad faith determination is not required
for sanctions under Rule 37(c)(1) because "the exclusion
analysis under Rule 37(c)(1) is limited by the specific
language of that provision"). Rule 37(b)(2)(C) does not
provide a court with the same amount of discretion as Rule
37(b)(2)(A). See Ins. Recovery Grp.. Inc. v.
Connolly, 977 F.Supp.2d 16, 26 (D. Mass. 2013) ("A
plain reading of Rule 37 makes the award of reasonable
expenses upon any violation of a discovery order, as
a general matter, mandatory, not permissive.").
Therefore, it stands to reason that although a court may
consider the existence of bad faith, such a finding is not a
necessary pre-condition for an award fees and costs pursuant
to Rule 37(b)(2)(C).
case, the Court directed Defendant to comply with the terms
of Plaintiffs subpoena by October 22, 2018, or else face
sanctions. Defendant did not meet the court-ordered deadline.
However, Defendant did appear before the Court for the
November 16, 2018, hearing on Plaintiffs Motion for Sanctions
as well as the November 30, 2018, and December 14, 2018,
hearings. While Defendant did not immediately provide
Plaintiffs counsel with all of the requested documentation at
the November 16th hearing, Defendant did come into full
compliance with the Court's order by the December 14th
hearing. As a result, all of Plaintiff s requested sanctions,
with the exception of attorney's fees and costs, are
moot. Nonetheless, Plaintiff is still entitled to reasonable
expenses, including attorney's fees, caused by
Defendant's discovery failure, unless one of Rule
37(b)(2)(C)'s exceptions apply. The Court finds neither
of those exceptions or the Anderson factors counsel
against awarding Plaintiff attorney's fees and costs.
majority of the relevant proceedings, Defendant proceeded
pro se and is thus "entitled to some
deference" from the court. See White v. Lever.
5:09-cv-81-RLV-DCK, 2009 WL 4062878, at *1 (W.D. N.C. Nov.
20, 2009) (citations omitted); see also Bauer v.
C.I.R.. 97 F.3d 45, 49 (4th Cir. 1996). However, it is
well settled that "[p]ro se litigants are not immune
from any sanction by virtue of their status alone."
Matthews v. Rational Wiki Found., No. 1:14-cv-257,
2017 WL 1129974, at *2 (E.D. Va. Mar. 24, 2017) (quoting
Zaczek v. Fauquier Cty., Va., 764 F.Supp. 1071, 1076
(E.D. Va. 1991)); see also Ballard v. Carlson. 882
F.2d 93, 96 (4th Cir. 1989). The Court may have been willing
to deny a fee request in this instance had Defendant offered
an explanation for his failure to timely comply with the
Court's order; Defendant provided no such explanation. In
fact, Defendant, who has since retained counsel, did not
object to Plaintiffs request for fees. Thus, the Court is
left to find that Defendant's failure to comply was not
substantially justified nor is an award of fees unjust.
Plaintiff shall be awarded its fees and costs incurred in
bringing its motion for sanctions upon a determination that
they are reasonable. The Court finds that Plaintiffs counsel
reasonably spent 15.4 total hours in connection with its
Motion, consisting of 8.2 hours by Bryan M. Mull and 7.2
hours by David S. Musgrave. (Dkt. 22-2 at 4.) Again, the
Court declines to award Plaintiff fees for counsel's
correspondence. Additionally, the Court finds that document
review as well as time spent by Mr. Musgrave conferencing
with Defendant and his counsel are not reimbursable under the
circumstances. Therefore, the Court finds that Plaintiff
should be awarded $6, 778 in attorney's fees.
Defendant shall be awarded $9, 953 in attorney's fees,
consisting of $3, 175 for its Motion for Contempt and $6, 778
for its Motions for Sanctions. Additionally, Defendant shall
also be awarded $911.19 in costs. An appropriate order shall
Clerk is directed to forward a copy of this Opinion to
parties and counsel of record.