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Lassley v. Secura Supreme Ins. Co.

United States District Court, D. Arizona

November 25, 2015

Brandon Lassley, Plaintiff,
v.
Secura Supreme Ins. Co., Defendant.

ORDER AND OPINION [RE: MOTION AT DOCKET 40]

JOHN W. SEDWICK, SENIOR UNITED STATES DISTRICT JUDGE

I. MOTION PRESENTED

At docket 39 the court issued the protective order sought by plaintiff Brandon Lassley (“Lassley”) at docket 26, denied the motion to compel filed by defendant Secura Supreme Insurance Company (“Secura”) at docket 29, and ordered Secura to pay Lassley’s reasonable attorney’s fees under Rules 26(c)(3) and 37(a)(5). Lassley’s application for attorney’s fees is at docket 40, supported by the affidavit of Lassley’s counsel, Christopher S. Welker (“Welker”), at docket 40-1. Welker filed a supplemental affidavit at docket 42 that names the attorneys that were listed only by their initials in his previous affidavit, provides their biographies, and includes a copy of Lassley’s contingent fee contract.[1] Secura’s opposition is at docket 43. The court did not seek a reply from Lassley. Oral argument was not requested and would not assist the court.

II. BACKGROUND

The background to this case is set out in the court’s order at docket 39 and need not be repeated here. Suffice it to say for present purposes that Lassley is seeking $15, 450 in attorney’s fees for 61.6 total hours of work: 40.2 hours from senior associate Justin Holm (“Holm”) at $250 per hour ($10, 050); 11.2 hours from partner Welker at $300 per hour ($3, 360); and a combined 10.2 hours of junior associate time at $200 per hour ($2, 040)-5.6 hours from Tim Ray (“Ray”) and 4.6 hours from Richard Carpenter (“Carpenter”).[2] These four attorneys’ 61.6 hours of work culminated in a nine-page protective order motion[3] and thirteen-page combined reply in support of that motion and opposition to Secura’s motion to compel.[4]

III. STANDARD OF REVIEW

Rule 37(a)(5) applies to the award of expenses related to successful protective order motions[5] and to unsuccessful motions to compel.[6] It provides that the court must award the prevailing party its “reasonable expenses, ” including attorney’s fees, in making the protective order motion or opposing the motion to compel.[7] When assessing the reasonableness of a request for attorney’s fees, the court applies a two-part “lodestar” approach.[8] The court must first determine the “lodestar” figure by multiplying the number of hours reasonably expended by a reasonable hourly rate.[9] Second, the court “may adjust the ‘presumptively reasonable’ lodestar figure based upon the factors set forth in Kerr v. Screen Extras Guild, Inc., [10] that have not been subsumed in the lodestar calculation.”[11] The fee applicant has the burden of submitting evidence to support the hours and rates claimed.[12]

IV. DISCUSSION

A. Lodestar Calculation

1. Hours reasonably expended

“By and large, the [district] court should defer to the winning lawyer’s professional judgment as to how much time he [or she] was required to spend on the case.”[13] Yet, the district court may “reduce the amount of requested fees to reflect a party’s limited degree of success, to account for block billing, or to deduct those hours the court deems excessive.”[14] Secura argues that 61.6 hours is excessive given that the motions did not involve dispositive questions, difficult questions of law, or complicated facts.[15] It specifically challenges the following time entries:

a.) Preliminary work

Lassley filed the protective order motion on May 6. Secura objects to time entries in March and April for “preliminary work” that it argues is not related to the motion. The court disagrees; the time Secura identifies was spent “making”[16] the protective order motion:

●Holm and Welker each spent 0.2 hours on March 11 conferring with opposing counsel regarding the disputed document requests.
●On March 11 Holm spent 0.6 hours working with Welker on “HIPAA authorization and protective order strategy, ” and Welker spent 0.3 hours analyzing “objections to ...

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