Neles-Jamesbury, Inc. v. Liberty Mutual Insurance

21 Mass. L. Rptr. 646
CourtMassachusetts Superior Court
DecidedNovember 20, 2006
DocketNo. WOCV20020982A
StatusPublished

This text of 21 Mass. L. Rptr. 646 (Neles-Jamesbury, Inc. v. Liberty Mutual Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Neles-Jamesbury, Inc. v. Liberty Mutual Insurance, 21 Mass. L. Rptr. 646 (Mass. Ct. App. 2006).

Opinion

Agnes, Peter W., J.

J. Introduction

The request to fix attorneys fees and costs arises out of this Court’s orders, which entered on August 18, 2006, compelling defendant St. Paul Fire and [647]*647Marine Insurance Company (hereinafter “St. Paul”) to produce documents and answer interrogatories, and awarding costs and attorneys fees to plaintiff Neles-Jamesbuiy Inc. (hereinafter “NJI"), for both. NJI now offers affidavits supporting their request for $29,148.86 in attorneys fees and costs.1 St. Paul argues that approximately $15,000 of the requested sum was for work not done in obtaining the orders and the remaining costs are “unreasonable." (Def.’s Opp’n Req. Fix Attys Fees at 2.) St. Paul’s motion for reconsideration asks this court to vacate its award of costs and fees to NJI. Finally, St. Paul moves to compel NJI to produce documents including copies of pleadings, written discovery, and documents exchanged by parties and produced by non-parties.

2. Fees and Reconsideration

Massachusetts law provides, at the discretion of the court, for the award of “reasonable expenses incurred in obtaining” an order compelling discovery. Mass.R.Civ.P. 37(a)(4). The two questions here are 1) whether the amount requested by NJI reflects expenses incurred in obtaining both orders and 2) whether those expenses are reasonable.

Scope of Expenses

NJI suggests that St. Paul should be sanctioned for the “full amount of attorneys fees and expenses that NJI incurred as a result of St. Paul’s failure to comply with its discovery obligations.” (Pl.’s Req. Fix Attys Fees at 2.) However, the Court may only award the “reasonable expenses incurred in obtaining the order” including attorneys fees. See Mass.R.Civ.P. 37(a)(4). This construction is similar to the Federal rule. See Fed.R.Civ.P. 37(a)(4)(A) (which allows for “reasonable expenses incurred in making the motion”). “Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts, absent compelling reasons to the contrary or significant differences in content.” Strom v. Am. Honda Motor Co., 423 Mass. 330, 335, (1996) (quotations and citations omitted).

While reviewing an opposing party’s responses to discovery requests and requesting supplementation may chronologically precede both the contemplation and the drafting of the motions to compel, they are part and parcel of the normal course of discovery: just because they are the antecedents of a motion to compel does not make them actions undertaken ‘in obtaining. the order.’ It is elementary that actions undertaken ‘in obtaining the order’ cannot precede the initial contemplation and drafting of the motion to compel discovery. Thus fees and costs incurred while reviewing the discovery responses and requesting their supplementation may not be awarded. Furthermore, effort expended after an order is issued cannot logically be expended in obtaining an order.

The first mention of preparation of a motion to compel discovery appears in the invoice item dated June 28, 2006. This Court issued the orders compelling discovery on August 18, 2006. Costs incurred in obtaining the orders could not possibly accrue after the order was issued. Thus, the time frame for costs and fees incurred in obtaining the order is work done between June 29, 2006 and August 18, 2006. An accounting of the fees and costs actually expended by the attorneys for NJI between June 28, 2006 and August 18, 2006, incurred in obtaining the order, results in 69 hours and at a total cost of $14,008.36, including $118.36 in Westlaw and copying charges.

Reasonableness of Expenses

The next question is whether the fees and costs incurred in obtaining the order were reasonable. Since St. Paul does not dispute the reasonableness of the costs, a $109.98 Westlaw charge and an $8.38 charge for photocopies, we will assume that they are reasonable. What remains is the question of whether the attorneys fees were reasonable. Massachusetts employs the so-called “lodestar method” to determine reasonable fees by multiplying the time reasonably spent on the case by a reasonable hourly rate. See Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). Thus, here we must make the twofold inquiry as to whether, 1) the total number of hours billed in obtaining the order was reasonable and 2) the hourly rate was reasonable.

The Number of Hours

Attorneys for NJI billed for 69 hours spent in obtaining the orders between June 28, 2006 and August 18, 2006. These hours encompass the preparation of motions to compel the production of documents and to compel supplemental interrogatory responses, and accompanying memoranda. The motion to compel the production of documents, the accompanying memorandum and certificates of service total 11 pages. Appended to it are 6 pages of exhibits. The memorandum in support of the motion to compel the production of documents, 7 pages in total, is straightforward and relatively uncomplicated. The motion to compel further answer to interrogatories, the accompanying memorandum and certificates of service total 17 pages. Appended to it are, approximately, 50 pages of exhibits. The memorandum in support of the motion to compel further answers to interrogatories, 13 pages in total, is also straightforward and relatively uncomplicated.2

Based on the record before the court, specifically the length of the documents produced and their relatively uncomplicated nature, the reported time of 69 hours to complete the memorandum, affidavits and accompanying exhibits is not reasonable. It is well within the discretion of the trial judge to determine what hours are reasonable. See, e.g. T&D Video, Inc. v. City of Revere, 66 Mass.App.Ct. 461, 481 (2006). Further, “it is the court’s prerogative (indeed, its duty) [648]*648to winnow out excessive hours.” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir. 2001). Accordingly, I will reduce the amount of hours by half.

The Hourly Rate

NJI is represented by James L. Ackerman and Stephanie L. Moon from the law firm of Wadland & Ackerman in Andover, Massachusetts. The rate charged by attorney Ackerman in this case was $285 per hour; the rate charged by attorney Moon was $175 per hour. Attorney Ackerman has been practicing law since 1971; attorney Moon has been practicing law since 2002. St. Paul does not dispute that these rates are both reasonable and typical. I find that these rates are both reasonable, given the relative experience of the attorneys, and typical of those practicing in Massachusetts outside of Boston.

The Lodestar Calculation

Thus, applying the lodestar calculation, we multiply the hours spent by the hourly rate for each lawyer then reduce the total by half. Attorney Ackerman spent 16.5 hours on the case between June 28 and August 18, at a rate of $285 per hour. The product of his hours and rate is $4,702.50 and half of that is $2351.25. Attorney Moon spent 52.5 hours on the case between June 28 and August 18, at a rate of $175 per hour. The product of her hours and rate is $9,187.50 and half of that is $4,593.75.

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Related

Gay Officers Action League v. Puerto Rico
247 F.3d 288 (First Circuit, 2001)
Fontaine v. Ebtec Corp.
613 N.E.2d 881 (Massachusetts Supreme Judicial Court, 1993)
Peterson v. Hopson
29 N.E.2d 140 (Massachusetts Supreme Judicial Court, 1940)
Strom v. American Honda Motor Co.
667 N.E.2d 1137 (Massachusetts Supreme Judicial Court, 1996)
T & D Video, Inc. v. City of Revere
848 N.E.2d 1221 (Massachusetts Appeals Court, 2006)
Miller v. Doctor's General Hospital
76 F.R.D. 136 (W.D. Oklahoma, 1977)

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Bluebook (online)
21 Mass. L. Rptr. 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neles-jamesbury-inc-v-liberty-mutual-insurance-masssuperct-2006.