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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PANAMA CITY DIVISION 

In re SLEP-TONE ENTERTAINMENT 

CORP., consolidated cases. 

Civil Action No. 

5:11-cv-00032-RS/CJK 

PLAINTIFF’S FIRST MOTION FOR ATTORNEY FEES 

 The Plaintiff, Slep-Tone Entertainment Corporation, by its counsel, hereby 

moves pursuant to Fed. R. Civ. P. 37(a)(5) for an order requiring Defendants 

Donovan’s Reef Lounge & Package Store, Inc. (“Donovan’s Reef”) and Green 

Glass Mall, Inc. (“GGM”) to pay its reasonable expenses, including attorney fees, 

in connection with making its motion (Doc. 138) to compel production. In support 

of the motion, the Plaintiff shows the Court as follows: 

1. On December 2, 2011, the Plaintiff propounded various Rule 34 

requests for production that called for, among other things, computer equipment 

and compact discs belonging to Donovan’s Reef and GGM to be produced for 

inspection and copying. 

2. Neither Defendant provided timely responses to the Plaintiff’s 

requests. Despite repeated requests from the Plaintiff and despite the Defendants’ 

repeated promises to comply with Rule 34, the Defendants failed and refused to 

provide written responses to the Plaintiff’s discovery requests until five days 

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before the close of discovery in this matter, waiting particularly until after the 

Plaintiff and its representative had appeared in the District for a deposition to 

provide those responses. 

3. The Plaintiff repeatedly requested that counsel for the Defendants 

coordinate an inspection of the requested materials, but counsel for the Defendants 

refused to return telephone calls or emails during the discovery period. After the 

discovery period ended, counsel for the Defendants then flatly refused to allow the 

inspection, stating that the discovery period had ended and that the Plaintiff had 

“missed [its] chance.” 

4. On April 20, 2012, the Plaintiff—having secured an extension of time 

to file a motion to compel and having repeatedly requested that the Defendants 

permit the inspection—moved to compel production of the requested items. After 

a short hearing on May 16, 2012, the Court indicated that the motion would be 

granted and required Plaintiff’s counsel to craft an appropriate order in 

consultation with counsel for the Defendants. 

5. Despite the Court’s clear order to cooperate, counsel for the 

Defendants lodged various spurious objections to the order prepared by the 

Plaintiff, which necessitated several rounds of discussions as the order was 

negotiated. The proposed order was submitted on May 29, 2012, and entered on 

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June 1, 2012. (Doc. 176.) The Court expressly reserved its ruling on the question 

of attorney fees. 

6. The Plaintiff’s counsel and its representative scheduled a trip to 

Panama City, Florida, to inspect the discs and computer systems (including storage 

media) on June 13, 2012. Despite having negotiated an order requiring all of the 

computer systems and storage media to be made available for inspection “together 

with all power supplies ... necessary to operate the computer or storage medium,” 

the Defendants failed to make both computer systems available for inspection and 

failed to provide power supplies needed to operate two of the storage media at that 

time. The inspection was interrupted to continue a deposition of the Plaintiff,1

 but 

at the conclusion of that deposition, counsel for the Defendants refused to resume 

the inspection of the remaining computer systems and storage media despite an 

order to do so. 

7. At the final pretrial conference, the Plaintiff asked the Court to 

enforce the prior order and to require the Defendants to resume the inspection, 

which request was granted. 

8. The Defendants’ refusal to permit a complete inspection of their 

holdings as ordered by the Court was not justified. 

                                                            

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 The deposition was conducted in person because the Plaintiff’s representative was present to conduct the 

inspection; the Court had expressly stated in its order regarding the deposition that the deposition could be 

completed by telephone. 

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9. As a direct result of the Defendants’ refusal to comply with a proper 

discovery request and refusal to comply with the order to compel, the Plaintiff and 

its counsel incurred an additional $1,234.16 in expenses and 15.6 hours of attorney 

time, as follows based upon contemporaneous time entries: 

Date Description Hours

4/19/2012 Legal research regarding motions to compel, Rule 34, and 

local rules regarding motions; review of discovery requests 

and records of communications with Defendants’ attorney 

documenting attempts to gain cooperation 1.9 

4/20/2012 Preparing, filing motion to compel production 2.8 

4/27/2012 Receiving, reviewing Defendants’ response to motion to 

compel production 0.5 

5/14/2012 Preparing for hearing on motion to compel 1.5 

5/15/2012 Attendance in court for hearing on motion to compel 1.0 

5/21/2012 Preparation of draft proposed order on motion to compel 2.8 

5/25/2012 Review of Defendants’ comments regarding proposed 

order; revising proposed order in response to comments 

1.4 

5/29/2012 Review of Defendants’ comments on revised proposed 

order; submitting proposed order to Court 

0.5 

6/13/2012 Conducting Rule 34 inspection of Defendants’ karaoke 

systems 

2.7 

6/29/2012 Continuing Rule 34 inspection of Defendants’ karaoke 

systems 

0.5 

7/26/2012 Preparing motion for attorney fees (this document) (fees 

waived) 

0.0 

 TOTAL 15.6 

10. Counsel for the Plaintiff, James M. Harrington, was first licensed to 

practice law in 2001 and has been in practice continuously since that date. Mr. 

Harrington is registered to practice before the U.S. Patent and Trademark Office in 

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patent cases. Mr. Harrington’s practice has been at least partially (since 2001) and 

substantially completely (since 2004) devoted to litigation regarding intellectual 

property matters, including trademark infringement actions. 

11. Mr. Harrington’s hourly rate for intellectual property litigation matters 

is $300.00, a rate that reflects experience and expertise in intellectual property 

matters beyond those of more general practitioners. 

12. Mr. Harrington’s hourly rate is identical to the median hourly billing 

rate for attorneys in his experience band (10-14 years) and is slightly higher than 

the median hourly billing rate for attorneys in the Metro Southeast region 

(including both the Plaintiff’s home territory and the place of trial of this matter), 

regardless of experience ($280.00), according to the 2010 Report of the Economic 

Survey collected by the American Intellectual Property Law Association, 

excerpted as Exhibit A. 

13. The Defendants’ delays necessitated transportation and travel 

expenses that would have been avoided had the Defendants simply complied with 

the requests for production, including airfare ($780.40), ground transportation 

($148.74, calculated at 268 miles round trip between Pensacola and Panama City at 

the current IRS per-mile rate of $0.555), and hotel expense ($305.02). These 

expenses are customary and reasonable under the circumstances. Documentation 

of the Plaintiff’s expenses is attached hereto as Exhibit B. 

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14. Counsel for the Plaintiff provided counsel for the Defendants with a 

copy of this motion in its entirety on July 26, 2012, inviting comment and 

requesting a conference about the matter. Counsel for the Plaintiff also attempted 

on July 31 to reach counsel for the Defendants by telephone but was answered only 

by voice mail. 

 Wherefore, the Plaintiff respectfully requests an order for the payment of 

reasonable expenses and attorney fees incurred in making the motion to compel, in 

a total amount of $5,914.16. 

 Respectfully submitted this the 31st day of July, 2012. 

 HARRINGTON LAW, P.C. 

 By: s/James M. Harrington 

 James M. Harrington, NCSB No. 30005 

 jharrington@harringtonlawpc.com 

 HARRINGTON LAW, P.C. 

 P.O. Box 403 

 Concord, NC 28026-0403 

 Tel: 704-315-5800 

 Fax: 704-625-9259

 Attorney for the Plaintiff 

CERTIFICATE OF SERVICE 

 I hereby certify that the foregoing paper is being filed on the date indicated 

below using the Clerk’s CM/ECF system, which will send a Notice of Electronic 

Filing to counsel of record as follows: 

STEVEN MITCHELL DEVER mitchdever@comcast.net 

Date: July 31, 2012 s/James M. Harrington 

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