Case 3:16-cv-02579-B Document 24 Filed 05/09/17 Page 1 of 10 TylerPageID

J. Bexley
261
Attorney


tyler.bexley@rgmfirm.com

p (214) 382-9805

f (214) 501-0731

May 9, 2017

Via ECF Filing

The Honorable Paul D. Stickney
United States Magistrate Judge
1100 Commerce Street, Room 1611
Dallas, Texas 75242

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

Dear Judge Stickney,

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

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

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.

PLAINTIFFS MOTION FOR ATTORNEYS FEES PURSUANT TO RULE 37

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

On April 7, 2017, Adelman filed a Motion to Compel Documents and Discovery

Responses from DART [Dkt. #16]. Adelman filed that Motion only after extensive efforts

to resolve the discovery disputes without Court intervention, including the following:

On February 13, 2017, Adelmans counsel emailed DARTs counsel to request

a conference regarding issues with DARTs discovery responses. (MTC App.
[Dkt. #17] 43.) On February 17, 2017, counsel for the parties conferred by
phone for approximately one hour. (Id. at 42.) Counsel for the parties
discussed several requests for production and requests for admission during
that call, and DARTs counsel agreed to follow up regarding several issues. (Id.
at 44.)

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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.)

Adelmans counsel sent another reminder email to DARTs counsel on April 4,

2017 and again on April 5, 2017. (Id. at 46.) To date, DARTs counsel has
not responded to these emails.

DART did not respond to Adelmans Motion to Compel. Although DART

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

Motion to Compel unresolved.

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

interrogatories remaining at issue in Adelmans Motion to Compel. (Dkt. #21.) In light

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

pursuant to Federal Rule of Civil Procedure 37(a)(5)(A).

ARGUMENT

As a general rule, a party that prevails on a motion to compel (or obtains discovery

after filing a motion to compel) is entitled to an award of attorneys fees:

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If the motion [to compel] is grantedor if the disclosure or requested

discovery is provided after the motion was filedthe court must, after
giving an opportunity to be heard, require the party . . . whose conduct
necessitated the motion, the party or attorney advising that conduct, or
both to pay the movants reasonable expenses incurred in making the
motion, including attorneys fees.

FED. R. CIV. P. 37(a)(5)(A) (emphasis added). There are three situations in which a court

should not award attorneys fees:

(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

expended on the Motion to Compel.

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.

None of the exceptions applies.

First, Adelmans counsel conferred in good faith with DARTs counsel prior to

filing to Motion to Compel. In fact, as detailed above, Adelmans counsel conferred

numerous times over a period of nearly two months before ultimately filing the Motion to

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Compel. Despite Adelmans best efforts, Court intervention was required before DART

would comply with its discovery obligations.

Second, DARTs failure to produce responsive documents and to fully answer

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)

(So-called boilerplate or unsupported objections . . . [are] improper and ineffective and

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

the legal system.).

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

enable it to admit or deny. (emphasis added)). Similarly, DART denied mutually

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

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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

resist the requested discovery.

In conferring on this motion, DARTs counsel claimed that DART acted in good

faith by providing documents relating to Officer Branchs disciplinary history after

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

offer to enter into a confidentiality agreement and continued to stand on an improper

relevance objection. (See MTC App. 44 (March 14, 2017 email in which Adelmans

counsel offered to enter into an agreed confidentiality order to address any

confidentiality concerns).) Under Rule 37 an award of attorneys fees is required where

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

Branchs disciplinary history comprised a very small portion of Adelmans Motion to

Compelroughly 10% of the pages in Adelmans briefing. Thus, DARTs argument

(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 determining the reasonableness and necessity of attorneys fees, district courts

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

Cir. 2012)). There is a strong presumption of the reasonableness of the lodestar

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

Blanchard v. Bergeron, 489 U.S. 87, 90 (1989); other citations omitted).

Here, Adelman requests an award of $5,070 in attorneys fees. As detailed in the

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.

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concerns DART may raise. (Id.) This requested rate is consistent with the rates charged

by attorneys with comparable experience in the Northern District of Texas. (Id.)

In a recent case analyzing the reasonableness of hourly rates in the Northern

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

Mr. Bexley as lead counsel in this case.

Moreover, the total amount of time expended16.9 hoursis reasonable. The

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

to discovery in good faith necessitated Adelmans Motion to Compel. Under the

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

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expended on a discovery dispute was a reasonable lodestar); Simmons v. Tarrant Cnty. 9-

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).

In summary, the requested amount of $5,070 is reasonable and necessary and

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

pursuing responsive discovery in the Motion to Compel.

Respectfully submitted,

REESE GORDON MARKETOS LLP

By: /s/ Tyler J. Bexley

Tyler J. Bexley
State Bar No. 24073923
750 N. Saint Paul St., Suite 600
Dallas, Texas 75201-3202
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com

ATTORNEY FOR PLAINTIFF

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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