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J. Bexley
261
Attorney
tyler.bexley@rgmfirm.com
p (214) 382-9805
f (214) 501-0731
May 9, 2017
Re: Avi S. Adelman v. Dallas Area Rapid Transit, et al., Case No. 3:16-cv-2579,
in the United States District Court, Northern District of Texas
Pursuant to Judge Boyles April 10, 2017 Order of Reference [Dkt. #19], Plaintiff
Avi S. Adelman files this Motion for Attorneys Fees Pursuant to Rule 37 with a
transmittal letter directed to your attention.
Respectfully,
Tyler J. Bexley
750 N. Saint Paul St. | Suite 600 | Dallas, TX 75201
Case 3:16-cv-02579-B Document 24 Filed 05/09/17 Page 2 of 10 PageID 262
AVI S. ADELMAN,
Plaintiff,
v. CIVIL ACTION NO. 3:16-cv-2579
DALLAS AREA RAPID TRANSIT and
STEPHANIE BRANCH, individually and in
her official capacity as a Dallas Area Rapid
Transit Police Officer,
Defendants.
On May 4, 2017, the Court granted Plaintiff Avi S. Adelmans Motion to Compel
and held that Adelman could file a motion seeking his attorneys fees incurred in
connection with the Motion to Compel. (Dkt. #21.) Adelman files this motion seeking
$5,070 in reasonable and necessary attorneys fees expended as a result of DARTs failure
to fulfill its discovery obligations under the Federal Rules of Civil Procedure.
SUMMARY
Responses from DART [Dkt. #16]. Adelman filed that Motion only after extensive efforts
to resolve the discovery disputes without Court intervention, including the following:
1
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On March 14, 2017, having not heard from DARTs counsel, Adelmans
counsel sent a follow-up email summarizing the discovery issues from the
parties phone call and identifying additional issues with DARTs discovery
responses and objections. (Id. at 44-45.) DARTs counsel responded by
telephone addressing one of the issues raised but did not respond to the other
issues. (Id. at 47.)
Adelmans counsel sent another follow-up email on March 27, 2017, and
DARTs counsel responded that he was in trial and would have to address these
issues later. (Id. at 46-47.)
supplemented some of its discovery responses, it waited until nearly three weeks after
Adelman filed his Motion to Compel and over two months after Adelman first raised
these issues. In addition, DARTs supplementation left the majority of the issues in the
On May 4, 2017, noting DARTs failure to respond to the Motion to Compel, the
Court granted Adelmans Motion, ordering DART to provide the responses and
documents responsive to the requests for production, requests for admission, and
of DARTs failure to provide complete discovery responses and documents, as well as the
Courts Order, Adelman seeks an award of reasonable and necessary attorneys fees
ARGUMENT
As a general rule, a party that prevails on a motion to compel (or obtains discovery
2
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FED. R. CIV. P. 37(a)(5)(A) (emphasis added). There are three situations in which a court
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing partys nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Id.
The Court should award Adelman his reasonable and necessary attorneys fees
expended on his Motion to Compel. The Court granted complete relief to Adelman, and
none of the exceptions in Rule 37 applies. Adelman requests an award of $5,070 in fees
A. An award of attorneys fees is appropriate under Rule 37, and none of the
exceptions applies.
The Courts May 4, 2017 Order grants all of the relief Adelman sought in his
Motion to Compel (as supplemented by the Notice of Partial Resolution). Absent one of
the three exceptions, the Court must award Adelman his attorneys fees under Rule 37.
First, Adelmans counsel conferred in good faith with DARTs counsel prior to
numerous times over a period of nearly two months before ultimately filing the Motion to
3
Case 3:16-cv-02579-B Document 24 Filed 05/09/17 Page 5 of 10 PageID 265
Compel. Despite Adelmans best efforts, Court intervention was required before DART
discovery was not substantially justified. DARTs objections to the disputed requests for
production, requests for admission, and interrogatories are the type of boilerplate and
unsupported objections that judges in this district have repeatedly condemned over the
past several years. See Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2014)
may rise (or fall) to the level of what the Fifth Circuit has described as an all-to-common
example of the sort of Rambo tactics that have brought disrepute upon attorneys and
Indeed, many of DARTs objections and refusals to answer discovery requests were
unsupported by any legal authority and did not appear to be in good faith. For instance,
DART claimed not to have sufficient information to answer some requests for admission,
despite that documents in DARTs possession contained the information sought. See FED.
R. CIV. P. 36(a)(4) (The answering party may assert lack of knowledge or information as
a reason for failing to admit or deny only if the party states that it has made reasonable
inquiry and that the information that it knows or can readily obtain is insufficient to
exclusive requests for admission, where the answer could not possibly have been deny
for both requests. Finally, DART repeatedly objected that deposition testimony would be
more appropriate than written discovery, but such an objection is not permissible under
4
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the Federal Rules. See Heller, 303 F.R.D. at 493 (Absent a court order providing
otherwise or a binding stipulation, Rule 26(d)(2)(A) generally dictates that Plaintiffs may
seek information through an interrogatory even if Defendant believes the subject matter
would be better explored through a deposition.). DARTs failure to file any response to
the Motion to Compel further establishes that DART did not have any good faith basis to
In conferring on this motion, DARTs counsel claimed that DART acted in good
negotiating a confidentiality agreement with Adelman. This is not grounds for the Court
to deny Adelman an award of his attorneys fees. First, DARTs counsel waited until
nearly three weeks after Adelman filed his Motion to Compel (and almost four months
after receiving discovery requests from Adelman) to produce the documents relating to
Officer Branchs disciplinary history. Up to that point, DART had rejected Adelmans
relevance objection. (See MTC App. 44 (March 14, 2017 email in which Adelmans
the requested discovery is provided after the motion was filed. FED. R. CIV. P.
37(a)(5)(A). Second, even crediting DARTs argument, the documents relating to Officer
(even if correct) does not provide a basis for denying an award of attorneys fees to
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Adelman, but suggests, at most, that a reduction of 10% of the requested award is
appropriate.1
B. Adelmans requested fees in the amount of $5,070 are reasonable and necessary.
in the Fifth Circuit use the lodestar method. Heidtman v. Cnty. of El Paso, 171 F.3d
1038, 1043 (5th Cir. 1999) (citation omitted). The lodestar is calculated by multiplying
the number of hours an attorney reasonably spent on the case by an appropriate hourly
rate, which is the market rate in the community for this work. McAfee v. Schneider
Natl Carriers, Inc., No. 3:14-cv-1500-P, 2015 WL 9319178, at *2 (N.D. Tex. Dec. 23,
2015) (citing Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th
amount. After calculating the lodestar, the Court may either (1) accept the lodestar figure
or (2) decrease or enhance it based on the circumstances of the case, taking into account
what are referred to as the Johnson factors. Id. (citing Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds by
Affidavit of Tyler Bexley, this is based on a lodestar using an hourly rate of $300 and a
total time expended of 16.9 hours. (App. 4-5.) Although Mr. Bexleys standard hourly
rate is $375, Adelman has reduced the requested rate to $300 per hour to address any
1
Again, Rule 37 requires an award of attorneys fees in situations such as this, where a party waits until
after the filing of a Motion to Compel to produce discovery. See FED. R. CIV. P. 37(a)(5)(A). But if the
Court decides to credit DARTs argument, a 10% reduction in fees would result in an award to Adelman of
$4,563.
6
Case 3:16-cv-02579-B Document 24 Filed 05/09/17 Page 8 of 10 PageID 268
concerns DART may raise. (Id.) This requested rate is consistent with the rates charged
District of Texas, Judge Boyle concluded that a range of $150 to $400 is generally
appropriate. Spear Mktg., Inc. v. Bancorpsouth Bank, C.A. No. 3:12-CV-3583-B 2016
WL 193586, at *9-10 (N.D. Tex. Jan. 14, 2016); accord McAfee, 2015 WL 9319178, at
*5 (finding that $300 per hour was a reasonable rate for an attorney with eight years
experience). In civil rights cases under 1983 in particular, other federal courts in Texas
have awarded similar hourly rates. See Doe v. Neal, C.A. 5:14-CV-00102-XR, 2015 WL
4508335, at *5 (W.D. Tex. July 24, 2015) (finding $350 per hour reasonable in 1983
case involving civil rights violations by police officers and noting that [t]his Court has
upheld similar, even higher, hourly rates for attorneys in similar cases (collecting cases)).
Based on this line of cases, $300 per hour is a reasonable rate for the services provided by
time expended is reasonable for the necessary tasks related to the Motion to Compel and
does not include any billing for duplicative or unnecessary tasks and reflects that time that
was necessary to obtain the requested discovery. (App. 4.) Further, as detailed above and
in the Motion to Compel, DARTs refusal to produce responsive documents and respond
circumstances, 16.9 hours is reasonable. See, e.g., Denton v. Suter, No. 3:11-cv-2559-N,
2016 WL 215391, at *5 (N.D. Tex. Jan. 19, 2016) (holding that nearly 20 hours
7
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1-1 Dist., No. 3:13-cv-1389-M, 2014 WL 2587516, at *4 (N.D. Tex. June 10, 2014)
(finding that over 30 hours expended on a motion to compel was a reasonable lodestar).
comports with the lodestar requirements and the Johnson factors. (App. 4-5.)
CONCLUSION
Adelman respectfully requests that the Court grant this motion and order DART to
pay to Adelman $5,070 for the reasonable and necessary attorneys fees expended
Respectfully submitted,
8
Case 3:16-cv-02579-B Document 24 Filed 05/09/17 Page 10 of 10 PageID 270
CERTIFICATE OF CONFERENCE
I hereby certify that, on May 5, 2017, I conferred with Gene Gamez, lead counsel
for DART, regarding all of the relief requested in this Motion. Mr. Gamez stated
DARTs position that an award of attorneys fees is not appropriate, and thus, this
motion is being presented as opposed.
s/ Tyler J. Bexley
CERTIFICATE OF SERVICE
The undersigned certifies that, on May 9, 2017, the foregoing document was
submitted to the clerk of the U.S. District Court, Northern District of Texas, using the
electronic case filing system (CM/ECF) of the court. I certify that the document was
served on all known counsel of record electronically as authorized by Federal Rule of
Civil Procedure 5(b)(2).
s/ Tyler J. Bexley