Blue Package Delivery, LLC v. Express Messenger Systems, Inc.

Background

Express Messenger Systems, Inc., doing business as OnTrac, previously moved to compel discovery, have requests for admission treated as admitted, and obtain sanctions from Blue Package Delivery, LLC. In an earlier order, the court granted the motion to compel, denied the request to treat the requests for admission as admitted, and granted OnTrac’s request for attorneys’ fees. OnTrac then submitted an affidavit supporting its fees. Blue Package did not object or otherwise respond.

Fee Amount and Reasonableness

The court used the lodestar method, which generally calculates a reasonable fee by multiplying reasonable hours by a reasonable hourly rate. OnTrac requested $4,705 for work on the motion to compel. The court found reasonable the rates charged by Mark Whitmore, a shareholder with more than 25 years of legal practice, and Jeffrey R. Peters, an associate who graduated from law school in 2012. The court also found that both attorneys worked a reasonable number of hours and provided adequate descriptions of their work.

Responsibility for Payment

Federal Rule of Civil Procedure 37(a)(5) allows a court to require the unsuccessful party, that party’s attorney, or both to pay reasonable expenses caused by a discovery dispute. The court had previously placed responsibility on both Blue Package and its counsel because it was then unclear whose conduct caused the discovery motion. After reviewing later submissions, including counsel’s requests to withdraw because of a breakdown in the attorney-client relationship, the court concluded that Blue Package’s continuing failure to timely provide necessary information and documents contributed to the problems. The court also noted that another attorney had previously sought withdrawal based on difficulty obtaining Blue Package’s participation.

Ruling

Judge Katherine Menendez granted OnTrac’s application for attorneys’ fees. The court altered its earlier order to require Blue Package specifically to pay OnTrac or its attorneys $4,705 in fees and costs within 21 days. Blue Package also had to file an affidavit within 21 days showing that it had made the payment. The court stated that failure to pay on time could result in a recommendation for dismissal with prejudice based on failure to prosecute and failure to comply with a court order.