Roth v. The Cheesecake Factory Restaurants, Inc.

Background

This order concerned attorney’s fees and expenses arising from a discovery dispute in a personal-injury lawsuit involving a slip-and-fall accident. After a March 11, 2020 discovery hearing, the court had determined that The Cheesecake Factory Restaurants, Inc. was responsible under Federal Rule of Civil Procedure 37(a)(5)(A) for Regina Roth’s reasonable expenses, including attorney’s fees, incurred in seeking production of surveillance footage.

The defendant had repeatedly represented that the footage no longer existed. It ultimately produced the footage on or about March 5, 2020, after Roth filed a motion to compel and additional letters concerning the footage and the defendant’s apparent failure to preserve evidence. The March 11 order allowed Roth to submit a fee application but did not authorize new requests for additional sanctions.

Fee Application and Arguments

Roth requested $4,835.25: $4,560.25 in attorney’s fees, calculated using a proposed hourly rate of $425 and 10.73 hours of work, plus $275 for an investigator who inspected the restaurant to identify cameras that might have recorded the accident.

The defendant asked that the application be denied in its entirety, citing Roth’s failure to follow parts of the March 11 order and her request for an additional adverse jury instruction. Alternatively, it argued that the hourly rate should be reduced to $200 and the compensable time to 2.1 hours, producing an award of no more than $420. The court explained that the requested adverse jury instruction was not properly before it because the March 11 order had addressed the sanctions issue and authorized only a fee application.

Court’s Analysis

The court calculated the award by multiplying a reasonable hourly rate by the reasonable number of hours spent on the discovery dispute. It found that Roth’s lawyer’s requested $425 hourly rate was too high in light of the lawyer’s admission to practice in 2015 and limited experience in personal-injury law. Considering the parties’ submissions, the nature of the case, the discovery dispute, relevant case law, and the court’s knowledge of local rates, the court set the reasonable hourly rate at $300.

The court also reduced the requested time, because Roth’s letter-motions addressed discovery issues beyond the surveillance footage for which the court had authorized sanctions. However, the court noted that Roth had pursued the footage through multiple filings largely because the defendant repeatedly said the footage did not exist. It awarded compensation for 9.5 hours, approximately 90 percent of the requested time.

The court declined to reimburse the $275 investigator expense because it did not find that expense reasonably incurred in making Roth’s motions, as required by Rule 37(a)(5)(A).

Disposition

Judge Barbara Moses awarded Roth $2,850 in attorney’s fees, calculated as $300 multiplied by 9.5 hours. Payment was ordered within 21 days. The order resolved the fee application at docket number 28. The opinion does not state that the underlying personal-injury lawsuit was resolved by this order.