Boucher v. Edgcomb Metals Co. CV-94-185-JD 10/24/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Boucher
v. Civil No. 94-185-JD
Edgcomb Metals Co., et al.
O R D E R
The plaintiff has filed a motion appealing the magistrate
judge's award of expenses (document no. 46) to which the
defendant has objected (document no. 49). As the court noted in
its final pretrial order dated August 28, 1995, counsel have
engaged in procedural bickering in this case which has done
little to advance the resolution of the case on the merits.
However, procedural bickering can often have conseguences
attached to it. The subject matter of this motion is an instance
of such bickering which the magistrate judge was called upon to
resolve. The court will not consider matters raised by the
plaintiff in his appeal that were not presented to the magistrate
judge.
The court finds that the facts underlying the current
dispute are accurately set forth in the magistrate judge's orders
dated April 12, 1995 (document no. 25, pp. 21-23), and August 7,
1995 (document no. 38, pp. 1-9), so there is no need to repeat
those facts. Pursuant to Fed. R. Civ. P. 37(a) (4) (B), the magistrate
judge on April 12, 1995, ordered the plaintiff to pay the
defendant its costs, including reasonable attorneys' fees,
incurred in opposing the plaintiff's motion to compel the
appearance of a witness named Peter Ward in New Hampshire for a
deposition. In accordance with the order, the defendant served
the plaintiff with an itemization of costs (see Exhibit A
attached to "Defendant's Reply to Plaintiff's Objection to Award
of Costs and Amount Claimed" (document no. 30)) to which the
plaintiff filed an objection (document no. 28). The magistrate
judge overruled the plaintiff's objection in his order dated
August 7, 1995, and ordered the plaintiff to pay the defendant
the fees and costs outlined in exhibit A within twenty days. The
plaintiff appeals the award of these expenses and the amount
awarded. While the magistrate judge did not make an explicit
finding that the fees and costs were reasonable, the court will
infer such a finding from the fact that he ordered the fees and
costs paid in accordance with the rule. Fed. R. Civ. P.
37 (a) (4) (B) .
In addition, pursuant to Fed. R. Civ. P. 37(d), the
magistrate judge in his August 7, 1995, order granted the
defendant's motion for sanctions (document no. 22) based on the
plaintiff's failure to appear at his deposition on March 15, 1995
2 and awarded the defendant its costs associated with the aborted
deposition. The defendant was ordered to serve the plaintiff and
the court with an itemization of costs incurred in arranging the
deposition, and the plaintiff was ordered either to pay those
costs or file an objection to the amounts claimed within ten days
of receipt of the itemization. The plaintiff appeals the
magistrate's order granting the defendant's motion for sanctions
and the amount awarded. The magistrate did not have an
opportunity to rule on the reasonableness of the costs submitted
by the defendant in connection with this sanction.
The court adopts the factual findings and legal rulings set
forth in the magistrate judge's orders dated April 12, 1995
(document no. 25 at pp. 21-23), and August 7, 1995 (document no.
38 at pp. 1-9). The court also finds that the orders of the
magistrate judge are not clearly erroneous or contrary to law
except to the extent hereinafter provided. As the court stated
in Mendez v. Banco Popular De Puerto Rico, 900 F.2d 4, 7 (1st
Cir. 1990), "Rules are rules - and the parties must play by
them." The court concurs with the findings of the magistrate
judge that the plaintiff did not comply with the rules and that
the defendant is entitled to the remedies allowed by the rules.
The court finds, however, that the magistrate judge's order
concerning the reasonableness of defendant's expenses in
3 connection with the Peter Ward matter is clearly erroneous or
contrary to law for the following reasons. In determining what
constitutes a reasonable number of hours, the court is guided by
"the timesheets submitted by counsel, adjusted according to the
considerations in King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st
Cir. 1977) [cert, denied, 438 U.S. 916 (1978)], the arguments of
the parties, and the sound discretion and experience of the
court." Moholland v. Schweiker, 546 F. Supp. 383, 387 (D.N.H.
1982). "Typically, a court proceeds by 'determin[ing] the number
of hours actually spent and then subtract[ing] form that figure
hours which were duplicative, unproductive, excessive, or
otherwise unnecessary.1" United States v. Metropolitan Dist.
Comm1n , 847 F.2d 12, 15 (1st Cir. 1988) (guoting Grendel1s Den,
Inc. v. Larken, 749 F.2d 945, 950 (1st Cir. 1984); see also
Velazquez Hernandez v. Morales, 810 F. Supp. 25, 29 (D.P.R.
1992). "Courts 'should ordinarily greet a claim that several
lawyers were reguired to perform a single set of tasks with
healthy skepticism." Pearson v. Fair, 980 F.2d 37, 47 (1st Cir.
1992) (guoting Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir.
1992)); Velazquez Hernandez, 810 F. Supp. at 28 (guoting Pearson,
980 F.2d at 47). A court may discount the time of two or more
lawyers in a hearing or conference when one lawyer would be
sufficient. Lipsett, 975 F.2d at 938; Hart v. Bourque, 7 98 F .2d
4 519, 523 (1st Cir. 1986); King, 560 F.2d at 1027. In addition,
high hourly rates billed by law firms indicate particular
expertise in the area, which should reduce the number of
attorneys needed to litigate. Pearson, 985 F.2d at 47; Ackerlev
Communications of Mass., Inc. v. City of Somerville, 901 F.2d
170, 172 (1st Cir. 1990); Velazquez Hernandez, 810 F. Supp. at
28 .
The court has reviewed the time sheets submitted by the
defendant in light of the considerations referred to in King,
supra. The defendant's objection (document no. 19) to the
plaintiff's motion to compel (document no. 18) consists of seven
pages accompanied by several exhibits. The legal and factual
issues addressed are not complex. The defendant has submitted
attorneys' fees in the amount of $3,181.50 representing 19.3
hours of attorney time. In the opinion of the court,
reimbursement for 19.3 hours of attorney time would be excessive
Free access — add to your briefcase to read the full text and ask questions with AI
Boucher v. Edgcomb Metals Co. CV-94-185-JD 10/24/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Boucher
v. Civil No. 94-185-JD
Edgcomb Metals Co., et al.
O R D E R
The plaintiff has filed a motion appealing the magistrate
judge's award of expenses (document no. 46) to which the
defendant has objected (document no. 49). As the court noted in
its final pretrial order dated August 28, 1995, counsel have
engaged in procedural bickering in this case which has done
little to advance the resolution of the case on the merits.
However, procedural bickering can often have conseguences
attached to it. The subject matter of this motion is an instance
of such bickering which the magistrate judge was called upon to
resolve. The court will not consider matters raised by the
plaintiff in his appeal that were not presented to the magistrate
judge.
The court finds that the facts underlying the current
dispute are accurately set forth in the magistrate judge's orders
dated April 12, 1995 (document no. 25, pp. 21-23), and August 7,
1995 (document no. 38, pp. 1-9), so there is no need to repeat
those facts. Pursuant to Fed. R. Civ. P. 37(a) (4) (B), the magistrate
judge on April 12, 1995, ordered the plaintiff to pay the
defendant its costs, including reasonable attorneys' fees,
incurred in opposing the plaintiff's motion to compel the
appearance of a witness named Peter Ward in New Hampshire for a
deposition. In accordance with the order, the defendant served
the plaintiff with an itemization of costs (see Exhibit A
attached to "Defendant's Reply to Plaintiff's Objection to Award
of Costs and Amount Claimed" (document no. 30)) to which the
plaintiff filed an objection (document no. 28). The magistrate
judge overruled the plaintiff's objection in his order dated
August 7, 1995, and ordered the plaintiff to pay the defendant
the fees and costs outlined in exhibit A within twenty days. The
plaintiff appeals the award of these expenses and the amount
awarded. While the magistrate judge did not make an explicit
finding that the fees and costs were reasonable, the court will
infer such a finding from the fact that he ordered the fees and
costs paid in accordance with the rule. Fed. R. Civ. P.
37 (a) (4) (B) .
In addition, pursuant to Fed. R. Civ. P. 37(d), the
magistrate judge in his August 7, 1995, order granted the
defendant's motion for sanctions (document no. 22) based on the
plaintiff's failure to appear at his deposition on March 15, 1995
2 and awarded the defendant its costs associated with the aborted
deposition. The defendant was ordered to serve the plaintiff and
the court with an itemization of costs incurred in arranging the
deposition, and the plaintiff was ordered either to pay those
costs or file an objection to the amounts claimed within ten days
of receipt of the itemization. The plaintiff appeals the
magistrate's order granting the defendant's motion for sanctions
and the amount awarded. The magistrate did not have an
opportunity to rule on the reasonableness of the costs submitted
by the defendant in connection with this sanction.
The court adopts the factual findings and legal rulings set
forth in the magistrate judge's orders dated April 12, 1995
(document no. 25 at pp. 21-23), and August 7, 1995 (document no.
38 at pp. 1-9). The court also finds that the orders of the
magistrate judge are not clearly erroneous or contrary to law
except to the extent hereinafter provided. As the court stated
in Mendez v. Banco Popular De Puerto Rico, 900 F.2d 4, 7 (1st
Cir. 1990), "Rules are rules - and the parties must play by
them." The court concurs with the findings of the magistrate
judge that the plaintiff did not comply with the rules and that
the defendant is entitled to the remedies allowed by the rules.
The court finds, however, that the magistrate judge's order
concerning the reasonableness of defendant's expenses in
3 connection with the Peter Ward matter is clearly erroneous or
contrary to law for the following reasons. In determining what
constitutes a reasonable number of hours, the court is guided by
"the timesheets submitted by counsel, adjusted according to the
considerations in King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st
Cir. 1977) [cert, denied, 438 U.S. 916 (1978)], the arguments of
the parties, and the sound discretion and experience of the
court." Moholland v. Schweiker, 546 F. Supp. 383, 387 (D.N.H.
1982). "Typically, a court proceeds by 'determin[ing] the number
of hours actually spent and then subtract[ing] form that figure
hours which were duplicative, unproductive, excessive, or
otherwise unnecessary.1" United States v. Metropolitan Dist.
Comm1n , 847 F.2d 12, 15 (1st Cir. 1988) (guoting Grendel1s Den,
Inc. v. Larken, 749 F.2d 945, 950 (1st Cir. 1984); see also
Velazquez Hernandez v. Morales, 810 F. Supp. 25, 29 (D.P.R.
1992). "Courts 'should ordinarily greet a claim that several
lawyers were reguired to perform a single set of tasks with
healthy skepticism." Pearson v. Fair, 980 F.2d 37, 47 (1st Cir.
1992) (guoting Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir.
1992)); Velazquez Hernandez, 810 F. Supp. at 28 (guoting Pearson,
980 F.2d at 47). A court may discount the time of two or more
lawyers in a hearing or conference when one lawyer would be
sufficient. Lipsett, 975 F.2d at 938; Hart v. Bourque, 7 98 F .2d
4 519, 523 (1st Cir. 1986); King, 560 F.2d at 1027. In addition,
high hourly rates billed by law firms indicate particular
expertise in the area, which should reduce the number of
attorneys needed to litigate. Pearson, 985 F.2d at 47; Ackerlev
Communications of Mass., Inc. v. City of Somerville, 901 F.2d
170, 172 (1st Cir. 1990); Velazquez Hernandez, 810 F. Supp. at
28 .
The court has reviewed the time sheets submitted by the
defendant in light of the considerations referred to in King,
supra. The defendant's objection (document no. 19) to the
plaintiff's motion to compel (document no. 18) consists of seven
pages accompanied by several exhibits. The legal and factual
issues addressed are not complex. The defendant has submitted
attorneys' fees in the amount of $3,181.50 representing 19.3
hours of attorney time. In the opinion of the court,
reimbursement for 19.3 hours of attorney time would be excessive
given the uncomplicated subject matter of the objection that was
filed. It was not necessary for three lawyers to address this
single task. Indeed, the high hourly rate billed by Mr. Dabrow
is indicative of his expertise, a fact which militates against
the need to have several other lawyers involved in a relatively
uncomplicated matter. Therefore, taking into account the
aforementioned considerations, the court finds that the amount of
5 submitted by the defendant for attorneys' fees should be reduced
by 50%. The court finds that the defendant is entitled to
reasonable attorneys' fees in connection with the Peter Ward
matter in the amount of $1,590.75 together with reasonable
expenses of $136.61.
The defendant also seeks to recover $4,175.00 in attorneys'
fees and $1,879.40 for expenses under the magistrate judge's
sanction order dated August 7, 1995, due to the failure of the
plaintiff to appear at his deposition on March 15, 1995. The
court must determine whether these fees and expenses are
reasonable, informed by the considerations set forth in King,
supra.
An itemization of these claims is set forth in document no.
45. The court finds that it is unreasonable for the defendant to
reguest reimbursement for the fees and expenses of two attorneys
who travelled to New Hampshire for the deposition. This is a
matter which could readily have been handled by one attorney.
The court also finds that the amount of attorney time charged for
researching, writing and conferring about the motion for
sanctions, together with the accompanying memorandum, is
unreasonable given the fact that the subject matter of the motion
was neither legally nor factually complex. Therefore, the
defendant is ordered to resubmit its claims for fees and
6 expenses, adjusted downward in light of the foregoing findings,
by November 3, 1995. Plaintiff shall have until November 10,
1995, to file any objection.
SO ORDERED.
Joseph A. DiClerico, Jr, Chief Judge October 24, 1995
cc: James W. Donchess, Esguire Thomas B.S. Quarles Jr., Esguire Allan M. Dabrow, Esguire