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Twin Rivers Engineering, Inc. v. Fieldpiece Instruments, Inc.

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

December 28, 2017

TWIN RIVERS ENGINEERING, INC., Plaintiff,
v.
FIELDPIECE INSTRUMENTS, INC. and CHY FIREMATE CO., LTD., Defendants.

          ORDER

          THOMAS B. SMITH UNITED STATES MAGISTRATE JUDGE.

         This case comes before the Court without a hearing on Defendants Fieldpiece Instruments, Inc. and CHY Firemate Co., Ltd.'s Motion for Reasonable Expenses and Fees Pursuant to Federal Rule of Civil Procedure 37(a)(5)(B) (Doc. 14). Plaintiff has not filed a response to the motion and the time within to do so has expired. As the Court explained in an earlier Order, when a party fails to respond, that is an indication that the motion is unopposed (Doc. 12). Based upon its lack of response, the Court finds that Plaintiff does not oppose Defendants' motion.

         This is an offshoot of a case currently pending in the Central District of California. On October 17, 2017, Defendants issued four amended FED. R. CIV. P. 30(b)(6) notices of taking Plaintiff's deposition commencing Monday, October 30 (Doc. 11-13 at 9-22). They also noticed the deposition of Plaintiff's principal, William Williams, to occur on an unknown date around October 30 (Doc. 2 at 1-2).[1]

         Frank Baker is a witness all parties would like to depose (Doc. 11-15 at 7). They were aware that he had health issues and on September 21, 2017, Defendants asked Plaintiff for a doctor's letter concerning Mr. Baker's ability to sit for a deposition (Doc. 11-8 at 2). The letter was not forthcoming and on October 17, Defendants noticed Mr. Baker's deposition for November 3 (Doc. 1-1). The next day, Defendants served a deposition subpoena on Mr. Baker (Id.). In fact, Mr. Baker was gravely ill (Doc. 11-4 at 2).

         On Thursday, October 26, Plaintiff delivered hundreds of pages of documents to Defendants (Doc. 5-1 at 2). On Sunday October 29, Defendants suggested the parties postpone Plaintiff's deposition from Monday the 30th to Tuesday the 31st to give Defendants time to review the documents Plaintiff had “dumped” on them (Id.). In the same email, Defendants suggested postponing Mr. Baker's deposition until he was in better condition to be deposed (Id.). Plaintiff did not respond to the email (Doc. 9 at 25).

         On Monday October 30, Defendants received an email from Mr. Baker's daughter-in-law confirming that Mr. Baker was too sick to testify and at 11:51 that morning they agreed to cancel the deposition (Doc. 11-6 at 3). Defendants served a notice of cancelling the deposition later in the day (Doc. 5-3 at 2).

         That same day, Plaintiffs' counsel and an attorney representing Mr. Baker jointly filed an emergency motion to quash the Baker subpoena, or in the alternative, for a protective order (Doc. 1). In the motion, Plaintiff's counsel said: “Pursuant to Local Rules and Federal Rule of Civil Procedure 26(c)(1), the undersigned certifies that counsel for non-party Frank Baker has conferred in good faith with counsel seeking discovery, who would not consent to the relief requested herein.” (Id., at 5).

         Plaintiff also filed an emergency motion for a protective order and to limit the duration of its deposition (Doc. 2). As grounds, Plaintiff alleged that Mr. Williams is its corporate representative and that Defendants were attempting to depose him for five days in both his representative and individual capacities, in violation of Fed.R.Civ.P. 30(d)(1) (Id., at 2). Plaintiff said: “The parties had previously agreed to commence the depositions on Monday, October 30th but Fieldpiece, on Sunday October 29th, after counsel travelled to Florida, unilaterally cancelled the Monday deposition and announced it would start on Tuesday October 31st.” (Id., n. 1). Defendants disputed this assertion and alleged that Plaintiff simply failed to appear for the deposition (Doc. 11 at 2, 5).

         Counsel for Plaintiff asked the Court to hold a next day hearing on both motions (Doc. 3). Because counsel alleged that these matters were emergencies, the Court set both motions for hearing at 10:30 a.m., on October 31 (Doc. 4). Between the filing of the motions and the hearing, Defendants filed written responses to both motions (Docs. 5-6).

         During the hearing, Plaintiff's attorney told the Court his side did not know until after the motion to quash and for protective order was filed that Defendants had withdrawn the subpoena for Mr. Baker's deposition (Id., pg. 3 at 24). But, counsel admitted that he had received an email “about ten minutes before the actual time the motion was stamped in with the clerk.” (Id., pg. 3 at 24 - pg. 4 at 1). After listening to the arguments, the Court denied Mr. Baker's emergency motion (Id., pg. 7 at 7).

         On the emergency motion for a protective order with respect to the deposition of Plaintiff, the Court was informed that a judge in California had already denied a request for a telephone conference on the matter (Id., pg. 9 at 3). But, counsel for Plaintiff argued, “the rules specifically designate that such a request for a protective order was to be filed in the district where the deposition is to be taken.” (Id., pg. 8 at 6). As grounds for this statement, counsel cited Fed.R.Civ.P. 30(d)(3)(A). The Court found the rule inapplicable because Plaintiff's motion was filed before the deposition was scheduled to begin[2] (Id., at 22).

         The Court also found Plaintiff liable for Defendants' reasonable legal expenses incurred to defend the Emergency Motion and Supporting Memorandum to Quash Subpoena, or Alternatively, for Protective Order and the Emergency Motion and Supporting Memorandum for Protective Order to Limit Duration of Deposition (Doc. 12). Now, the Court must decide Defendants' application for an award of $8, 257.00 in attorney's fees to defend these motions.

         The Court employs the lodestar approach as the first step in calculating a reasonable fee for counsels' services. “[T]he starting point in any determination for an objective estimate of the value of a lawyer's services is to multiply hours reasonably expended by a reasonable hourly rate.” Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Storfer v. Guarantee Trust Life Ins. Co., 666 F.3d 1277, (11th Cir. 2011) (citing Insurance Co. of North America v. Lexow, 937 F.2d 569, 571 (11th Cir. 1991). “[T]he lodestar as calculated in Hensley presumptively includes all of the twelve factors derived from the ABA Code of Professional Responsibility DR 2-106 (1980) and adopted in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), except on rare occasions the factor of results obtained and, perhaps, enhancement for contingency.” Norman, 836 F.2d at 1299.[3]

         Once the Court has determined the lodestar, it may adjust the amount upward or downward based upon a number of factors including the results obtained. Storfer v. Guarantee Trust Life Ins. Co., 666 F.3d 1277, (11th Cir. 2011) (citing Insurance Co. of North America v. Lexow, 937 F.2d 569, 571 (11th Cir. 1991). “Ultimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no precise rule or formula for making these determinations.'” Villano v. City of Boynton Beach, 254 F.3d 1302, 1305 (11th Cir. 2001) (quoting Hensley, 461 U.S. at 436). The Court is “an expert on the question [of attorneys' fees] and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either ...


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