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Skybolt Aeromotive Corp. v. Milspec Products, Inc.

United States District Court, M.D. Florida, Ocala Division

June 7, 2017

SKYBOLT AEROMOTIVE CORPORATION, a Florida Corporation Plaintiff,
v.
MILSPEC PRODUCTS, INC. and JEREMY SUMMERS Defendants. Table 1 DATE TIMEKEEPER DESCRIPTION RATE HOURS FEES

          ORDER

          PHILIP R. LAMMENS United States Magistrate Judge

          Before the Court is Plaintiff Skybolt Aeromotive Corporation's request for attorney's fees relating to Defendant MilSpec Products, Inc.'s inadequate discovery responses. (Docs. 31; 60; 60-1). MilSpec has responded in opposition to the fee request. (Doc. 66). For the following reasons, Plaintiff's motion is due to be granted to the extent set forth herein.

         I. Background

         In October of last year, Plaintiff filed this case against MilSpec (and MilSpec's president, Jeremy Summers) asserting allegations of false advertising, false marking, misleading advertising, unfair and deceptive trade practices, and breach of a settlement agreement. (Doc. 1). According to Plaintiff, before propounding any discovery requests, it proposed a confidentiality agreement to MilSpec.[1] (Doc. 31 at ¶3). Plaintiff then served its First Request for Production of Documents on January 12, 2017. (Doc. 31 at ¶2).

         On February 14, MilSpec requested a twenty-day extension to respond to Plaintiff's First Request for Production of Documents, which the Court granted. (Docs. 28, 30). MilSpec then timely responded to Plaintiff's First Request for Production of Documents on March 6, but offered no responsive documents and only objections. (Doc. 31 at ¶13; 31-5). The parties then conferred on March 10 and 14, resolved some of their discovery issues, and MilSpec agreed to produce some of the disputed discovery on or before March 17. (Doc. 31 at ¶14). But on March 17, MilSpec refused to produce certain documents, which, according to Plaintiff, necessitated its filing of a motion to compel. (Doc. 31at ¶¶15-16).

         So Plaintiff filed the underlying motion to compel on March 22. (Doc 31). In that eighteen-page motion, Plaintiff outlined the production requests at issue, MilSpec's objections, and why the Court should overrule those objections with citations to relevant case law, the Middle District's Discovery Handbook, and the Federal Rules of Civil Procedure. In brief, Plaintiff asserted, among other arguments, that the production requests at issue sought relevant information and that MilSpec's objections were mere boilerplate that lacked the requisite specificity. (See Doc. 31 at pp.13-16).

         MilSpec then responded, noted that it had already produced some of the documents at issue after Plaintiff had filed the motion to compel and agreed to produce other documents as long as the scope of those requested documents was limited. (See Doc. 43 at ¶¶10-13). Also in that response, MilSpec asserted that though it conferred in good faith on March 22 and 23 with Plaintiff about the scope of some of the documents at issue, Plaintiff failed to provide MilSpec with any legal authority supporting Plaintiff's position and Plaintiff then “launched its Motion to Compel.” (Doc. 43 at n.1). Next, Plaintiff replied to MilSpec's response, stating a slightly different version of the events that occurred during the 3.01(g) conferences and reasserting its arguments against MilSpec's objections. (Doc. 51).

         In late April, the Court entered an Order on Plaintiff's motion to compel. (Doc. 52). It stated that given MilSpec's post-motion-to-compel production and MilSpec's anticipated production, Plaintiff's motion to compel was now moot. (Doc. 52 at p.2). The Court further noted the apparent poor quality of the parties' discovery communications. (Doc. 52 at n.1). Then, based on MilSpec's disclosure of requested discovery after Plaintiff's motion to compel, and pursuant to Fed.R.Civ.P. 37(a)(5), the Court gave Plaintiff time in which to file an assessment of its reasonably incurred expenses and gave MilSpec an opportunity to show cause why those expenses should not be imposed against it. (Doc. 52 at p.3).

         Plaintiff has now filed the affidavit of its attorney, Amber N. Davis, Esq., along with itemized billing records, and requests $5, 284 in attorney's fees, but Plaintiff does not request any costs. (Doc. 60-1). MilSpec has responded and submits that Plaintiff should not receive any fees as Plaintiff failed to attempt a “genuine good faith effort to confer prior to the filing of the Motion to Compel” or, if the Court is inclined to award Plaintiff fees, that the requested fees should be reduced as “the vast majority of the time entries are not recoverable or duplicative in accordance with controlling law.” (Doc. 66 at ¶¶2, 4).

         II. Discussion

         A. Entitlement

         As stated, MilSpec challenges Plaintiff's entitlement to attorney's fees on a single ground: that Plaintiff failed to genuinely confer with MilSpec in good faith before filing the underlying motion to compel. (Doc. 66 at ¶¶2-3); Fed.R.Civ.P. 37(a)(5)(A)(i) (noting that that Court must not award attorney's fees associated with a motion to compel if “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action”). “A party satisfies the ‘good faith' exception of Rule 37(a)(5)(A)(i) when it actively attempts to settle the dispute with the non-complying party before resulting to Court action.” Commerce First Fin., LLC v. Summerlin Bass, LLC, No. 2:10-CV-290-CEH-DNF, 2011 WL 13141496, at *2 (M.D. Fla. June 16, 2011).

         While MilSpec complains about the conference, see (Doc. 43 at n.1 (noting that the parties conferred on March 22, and that Plaintiff then “launched” its motion to compel on the very same day)), and contends that Plaintiff did not genuinely confer (Doc. 66 at ¶¶2-3), the record above shows-and MilSpec does not dispute-that numerous efforts were made by Plaintiff to work out the discovery without court intervention: (1) MilSpec's counsel ignored several communications from Plaintiff's counsel about the proposed confidentiality agreement (Doc. 31 at ¶¶3, 7, 9, 15, 16); (2) MilSpec responded to Plaintiff's discovery requests with only objections and no responsive documents on March 6 (Doc. 31 at ¶13; 31-5); (3) the parties then conferred on March 10, discussed the discovery at issue, came to an agreement about at least some of the disputed documents, and MilSpec agreed to produce undisputed documents on or before March 17 (Doc. 31 at ¶14); (4) the parties conferred again on March 14 (Doc. 31 at ¶14); (5) the parties conferred again on March 22 and MilSpec maintained its objections to the scope of certain discovery that it did not produce on March 17 (Doc. 43 at n.1; see also Doc. 31 at ¶14) (“Plaintiff received the selected responsive documents in response to its First Request for Production of Documents from Defendant on March 17, 2017”); and (6) the motion to compel at issue contains a Local Rule 3.01(g) certification that Plaintiff's counsel conferred with MilSpec's counsel, who “advised Plaintiff's counsel that Defendant does not consent to the relief sought herein” (Doc. 31 at pp.17- 18), which is a certification that MilSpec did not challenge in its response to the motion to compel. Based on the above undisputed facts, the Court cannot say that Plaintiff failed to meet and confer in good faith in an attempt to resolve the parties' discovery issues before filing the underlying motion to compel; indeed, these events suggest a good faith effort was made. Cf. Commerce First Fin., LLC v. Summerlin Bass, LLC, No. 2:10-CV-290-CEH-DNF, 2011 WL 13141496, at *1-2 (M.D. Fla. June 16, 2011) (finding that the plaintiff “filed its Motion to Compel prior to engaging in sufficient efforts with [the defendants] to settle the discovery dispute” when the plaintiff apparently declined “the opportunity to inspect and photocopy the documents provided” prior to filing the motion to compel).

         B. Attorney's Fees

         Plaintiff seeks $5, 284 in attorney's fees. (Doc. 61). In determining reasonable attorney's fees, the Court applies the federal lodestar approach, by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly rate for the services provided by counsel for the prevailing party. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (per curiam). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Once the court has determined the lodestar, it may adjust the ...


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