United States District Court, D. Arizona
ORDER AND OPINION Re: Motion at docket 200
JOHN W. SEDWICK, Senior District Judge.
I. MOTION PRESENTED
At docket 200 plaintiffs David Collinge, et al. ("Plaintiffs") move for an order awarding the amount of $14, 978.70 in attorneys' fees and expenses associated with their motion to compel discovery responses from defendants IntelliQuick Delivery, Inc., et al. ("Defendants"). The motion is supported by the Declaration of Daniel Bonnett at docket 200-1, several exhibits attached to that Declaration, and the Declaration of Mark Bracken at docket 200-2. Defendants' response is at docket 207. Oral argument was requested, but would not assist the court.
Plaintiffs are individuals who drive for, or who formerly drove for, defendant IntelliQuick, which is a parcel delivery business. The other defendants are individuals alleged to have exercised managerial or supervisory authority for IntelliQuick. Plaintiffs seek an award of wages, benefits, and damages under various federal and state laws, including the Fair Labor Standard Act ("FLSA"),  the Family Medical Leave Act ("FMLA"),  Arizona's wage statute,  and Arizona's minimum wage statute. Plaintiffs' claims turn on the proposition that Defendants wrongfully classified Plaintiffs as independent contractors rather than employees.
The pending motion results from the court's ruling on Plaintiffs' motion to compel Defendants to respond to certain discovery requests. The court granted the motion to compel much, but not all, of the discovery sought. The court also ruled that, because the motion was granted in part and denied in part, Plaintiffs' recovery of expenses should be apportioned pursuant to Rule 37(a)(5)(C). The court suggested, but did not determine, that an apportionment allowing Plaintiffs to recover 70% of their reasonable expenses would be appropriate.
III. STANDARD OF REVIEW
Under Rule 37, if a motion to compel is granted, sanctions in the form of "reasonable expenses, " including attorneys' fees, must be awarded against the party and attorney "whose conduct necessitated the motion." The presumption in favor of an award of attorneys' fees serves a deterrent function by discouraging "unnecessary involvement by the court in discovery." When, as here, a motion to compel is granted in part and denied in part, the court may apportion the expenses of the motion. When assessing the reasonableness of a request for attorneys' fees, the court applies a two-part "lodestar" approach. The court must first determine the "lodestar" figure by multiplying the number of hours reasonably expended by a reasonable hourly rate. Second, the court "may adjust the presumptively reasonable' lodestar figure based upon the factors set forth in Kerr v. Screen Extras Guild, Inc .  The fee applicant has the burden of submitting evidence to support the hours and rates claimed.
Plaintiffs have accepted the court's suggestion that an apportionment awarding 70% of their reasonable expenses is appropriate. Defendants do not contend otherwise. The total value of attorneys' fees plus $75 in costs, which Plaintiffs contend was necessarily expended on the motion to compel and the pending motion, is $21, 141 ($21, 066 in fees $75 in costs). Seventy percent of that sum is $14, 798.70, the amount Plaintiffs request.
Defendants do not dispute the hourly rates charged by Plaintiffs' counsel, but find fault with the total amount of time billed for the work. Defendants emphasize that the motion to compel dealt with a single issue-whether third-party contracts and related documents were discoverable-which was only one of the topics addressed by the parties in their "meet and confer" efforts. Defendants' first argument for a reduction in the amount sought is that some of the meet-and-confer time claimed relates to the other discovery topics. Plaintiffs contend that they have taken that consideration into account in calculating the award they seek.
Of course, before a motion to compel may be filed, the parties must meet and attempt to resolve their disagreement without court intervention. Here, but for the single area which became the subject matter of the motion to compel, the parties' differences were resolved without motion practice. Plaintiffs have reduced the time spent relating to the "meet and confer" effort from 12 hours to 6 hours, a reduction which Messrs. Bonnett and Bracken have declared eliminates all of the time spent in connection with meeting and conferring on the other discovery issues. Defendants argue that this reduction is too small. They point to correspondence from Plaintiffs' counsel which devotes substantially less than half of its content to the topic addressed in the motion to compel. How many words are devoted in a letter to a particular topic is not, in this court's view, a very reliable indicator of how much time was spent analyzing and discussing the topic. Furthermore, defense counsel was necessarily involved in the meet-and-confer process, yet Defendants have not produced any declaration showing how the defense lawyers' time would be allocated between the various discovery topics. While the burden of persuasion is on Plaintiffs, the absence of contrary evidence which is within Defendants' control is something to be considered in assessing the probative value of the declarations made by Messrs. Bonnett and Bracken. In general, the court finds that Plaintiffs have carried their burden on this issue. However, the court also finds that a close look at the declarations requires a further reduction.
According to Plaintiffs, the total time spent in connection with meeting and conferring on all of the discovery problems was 12 hours, consisting of 1.8 hours of partner time and 10.2 hours of associate time. It is clear that both partner time and associate time should have been reduced, for both the partner and the associate would necessarily have been involved with the other issues. Plaintiffs reduced the associate time from 10.2 hours to 4.2 hours, a reduction of just over 59 percent. A similar reduction needs to be made in the partner time, so the partner time will be reduced from 1.8 hours to 0.74 hours. At the partner billing rate of $525/hour, the reduction is $556.50.
In preparing the motion to compel, Plaintiffs' declarations show that they made a reduction of 25% to account for time working on issues which, in the end, were not raised in the motion to compel. Defendants contend that the reduction is too small. Their argument is that the total time spent is so large that there must have been more time spent on the issues not ultimately raised. Because the court finds the total amount of time claimed after the reduction to be reasonable in light of the work product produced, Defendants' argument is not persuasive. The court finds generally that a 25% reduction is reasonable. However, Plaintiffs made no reduction in the partner hours involved. Because it is reasonable to conclude that the partner participated in the decision about which issues to raise and which ...