Moulton v. Bane, et al.

2015 DNH 220

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Thomas M. Moulton

v. Civil No. 14-cv-265-JD Opinion No. 2015 DNH 220 David Bane and Prime Choice Enterprises, LLC

O R D E R

Moulton previously moved for sanctions, arguing that David

Bane had not complied with the court’s order to produce

documents responsive to requests 20, 21, and 22 in his first set

of requests for production of documents. In response, Bane

argued that the delay in providing discovery was caused by

disruption in his counsel’s practice due to the sudden departure

of the lawyer who had been primarily responsible for the case

and that any failure to comply with the order was not willful.

The court ordered Bane to provide, by the stated dates, all

documents responsive to requests 20, 21, and 22, and a

certification that all responsive documents had been produced.

The court also allowed Moulton to file a supplemental motion for

sanctions.

Discussion

Moulton has now filed a supplemental motion for sanctions.

He acknowledges that the ordered discovery and the certification have been provided. Nevertheless, Moulton seeks as sanctions

default judgment in his favor on all claims or alternatively

that the court declare that certain facts are established in the

case. Moulton also requests an award of his attorney’s fees

incurred in filing the motions for sanctions.

In response, Bane reiterates that the discovery delays were

not willful but instead were caused by the difficulties his

counsel encountered due to the departure of the lawyer who was

handling the case. Bane further states that his failure to

produce complete responses to requests 20, 21, and 22 in a

timely manner was due to his misunderstanding of the scope of

the requests. Once the requests were properly explained by

counsel, Bane produced the responsive documents.

Bane argues that the sanctions of default and establishing

certain facts are not appropriate in the circumstances that

occurred here. He does not respond to Moulton’s request for

attorney’s fees.

A. Sanctions

As explained in more detail in the court’s previous order

issued on November 10, 2015 (document no. 101), the sanction of

default, or establishing facts that would result in judgment

against the opposing party, is reserved for severe discovery

violations. AngioDynamics, Inc. v. Biolitec AG, 780 F.3d 429,

2 436 (1st Cir. 2015). Even in those cases, the decision of

whether to enter default depends on all of the circumstances

that pertain to the discovery violation. Hooper-Haas v. Ziegler

Holdings, LLC, 690 F.3d 34, 38 (1st Cir. 2012).

In this case, Bane has now provided the requested

discovery. Moulton has not shown any prejudice caused by the

delay other than the additional expenses incurred in forcing

Bane to comply with the discovery requests. Under the

circumstances presented here, the severe sanctions of default

and establishing facts that would result in judgment against

Bane and PCE are not appropriate.

B. Attorneys’ Fees

When a party fails to obey a discovery order, the court

must order that party to pay the attorneys’ fees incurred

because of the failure to comply “unless the failure was

substantially justified or other circumstances make an award of

expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). The party

facing sanctions bears the burden of showing substantial

justification or other circumstances that would make an award

unjust. See Novak v. Wolpoff & Abramson LLP, 536 F.3d 175, 178

(2d Cir. 2008); Metrocorps, Inc. v. E. Mass. Drum & Bugle Corps

Ass’n, 912 F.2d 1, 2 (1st Cir. 1990). As Bane did not address

3 Moulton’s request for attorney’s fees, he apparently does not

oppose that part of the motion.

Reasonable fees for purposes of an award of expenses under

Rule 37 are generally calculated using the lodestar method.

See, e.g., Providence Piers, LLC v. SMM New England, Inc., 2015

WL 4459143, at *6 (D.R.I. July 20, 2015); Walker v. Segway Inc.,

2013 WL 3754864, at *2 (D.N.H. July 15, 2013). Under the

lodestar method, the court multiplies the hours productively

spent by a reasonable hourly rate. Torres-Rivera v. O’Neill-

Cancel, 524 F.3d 331, 336 (1st Cir. 2008). The party seeking

fees must provide sufficient documentation to support the hours

claimed and the rate requested. Id.

Moulton asks for an award of $1,620.00 in attorneys’ fees.

In support, he provides the declaration of counsel who states

that her usual hourly rate is $310 per hour although she is

charging Moulton $270 per hour in this case. Counsel also

appended a time and expense report to show the time spent on the

motion and the supplemental motion for sanctions.

For purposes of awarding fees in a prior order, the court

found that counsel’s hourly rate of $270 is reasonable in this

case. See Order, November 24, 2015, doc. no. 114, at 13-14.

The time and expense report shows that counsel spent a total of

six hours preparing the two motions. The lodestar calculation

4 results in a fee of $1,620.00, as Moulton requests. Bane does

not object to that amount.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

sanctions (document no. 83) and supplemental motion for

sanctions (document no. 112) are granted to the extent that

plaintiff is awarded reasonable attorneys’ fees in the amount of

$1,620.00. The motions are otherwise denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

December 2, 2015

cc: Anna B. Hantz, Esq. Michele E. Kenney, Esq. Deborah Ann Notinger, Esq. William B. Pribis, Esq. Ross H. Schmierer, Esq. Nathan P. Warecki, Esq.