IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

EARATON ADAMS, et al., ) 

individually and on behalf of the ) 

class they seek to represent, ) 

) 

Plaintiffs, ) 

) 

v. ) CIVIL ACTION NO. 08-0155-KD-N 

) 

AUSTAL, U.S.A., L.L.C., ) 

) 

Defendant. ) 

 ORDER

This matter is before the Court on plaintiffs’ Motion (doc. 133)1

 for related attorneys= fees 

and costs, filed following the court=s order (doc. 132) granting in part plaintiffs= Motion to Compel. 

Also before the court at this time are plaintiffs’ Motion for Extension of Time (doc. 139)2

 in which 

to disclosure its expert reports and defendant’s motion for extension of time to file dispositive 

motions (doc. 146)3

. The complaint in this action was filed on March 20, 2008, and contained 

allegations concerning a potential plaintiff class. The procedural background of this case is detailed 

in numerous filings in the record. See e.g. Order, doc. 132. The court will not separately recount the 

facts, but will address in context those facts which are central to its decision. 

 

1

 On this issue the parties have also filed plaintiff’s supplementation (doc. 135), defendant’s 

response (doc. 137), and plaintiff’s reply (doc. 137); further the court is presented with an extensive 

record. 

2

 Defendant has filed a Response (doc. 142) and plaintiffs a Reply (doc. 145).

3

 In response to the motion plaintiffs state that they have no objection to the motion and state 

that “[t]he parties jointly request that this Court move all filings that are currently due on July 1, 

2010, to forty-five days after Plaintiffs’ Expert Report is submitted since both parties need this 

report for their respective motions.” (Doc. 147) 

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2 

Attorneys Fees

Rule 37(a)(5)(A) states, in pertinent part: 

A) If the motion [to compel] is granted-or if the disclosure or requested discovery is 

provided after the motion was filed-the court must, after giving an opportunity to be 

heard, require the party or deponent whose conduct necessitated the motion, the party 

or attorney advising that conduct, or both to pay the movant's reasonable expenses 

incurred in making the motion, including attorney's fees. But the court must not order 

this payment if: 

(i) the movant filed the motion before attempting in good faith to obtain the 

disclosure or discovery without court action; 

(ii) the opposing party's nondisclosure, response, or objection was substantially 

justified; or 

(iii) other circumstances make an award of expenses unjust. 

 The court granted plaintiff=s Renewed Motion to Compel as to Athe requested pay data for its 

employees, including particularly the Gorrie-Reagan and Paychex databases from 1999 to the 

present, and instructions for the system including a glossary of all codes necessary to understand the 

entries.@ Plaintiffs had been seeking this pay informationBnot always formally or clearly, but 

consistentlyBalmost since the case was filed. They asserted, with some credibility4, that this 

information should have been produced voluntarily by defendant in connection with its initial 

disclosures. However, until recently, plaintiffs had not made a formal discovery request for this 

information. This information was the crux of the Motion to Compel and that formal request was the 

basis of the instant motion. 

 

4

 Plaintiffs have not cited the court to authority for their argument that the defendant could not 

satisfy the initial disclosure requirements of Rule 26 by identifying relevant documents rather than 

by the production of all identified documents, though it seems highly likely that the alternative of 

identification under Rule 26 was intended to lead to voluntary production of such information upon 

agreement of the parties, without court involvement. 

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3 

The calculation of reasonable attorney=s fees is clearly within the sound discretion of the 

court. Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1187 (11th Cir. 1983). The court finds 

plaintiffs are entitled to an award of reasonable fees and costs for the filing and prosecution of their 

most recent Motion to Compel. In assessing the reasonableness of attorney's fee requests, courts 

generally apply the Alodestar@ method to obtain an objective estimate of the value of an attorney's 

services. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 

1988); e.g., Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000) (explaining that the 

lodestar Ais the number of hours (tempered by billing judgment) spent in the legal work on the case, 

multiplied by a reasonable market rate in the local area@). The value of an attorney's services is 

calculated by multiplying the hours that the attorney reasonably worked by a reasonable rate of pay, 

defined as Athe prevailing market rate in the legal community for similar services by lawyers of 

reasonably comparable skills, experience, and reputation.@ Blum v. Stenson, 465 U.S. 886, 895-96 n. 

11 (1984). The party moving for fees bears the burden of establishing the Areasonableness@ of the 

hourly rate and number of hours expended via specific evidence supporting the hours and rates 

claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The court may utilize its own 

Aknowledge and expertise@ to come to an independent judgment regarding the reasonableness of 

requested attorney's fees. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). However, when 

seeking attorney's fees, the prevailing party must not request fees for hours that are Aexcessive, 

redundant, or otherwise unnecessary;@ or request fees for unsuccessful claims. Hensley, 461 U.S. at 

434-35. When a request for attorney's fees is unreasonably high, the court may Aconduct an 

hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut.@ Bivins v. 

Wrap it Up Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). 

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4 

In the instant action, in the order granting in part the motion to compel, the court gave 

plaintiffs some guidance on the matters as to which it would and would not consider awarding fees. 

 The court will only grant fees for work done on the issues as to which plaintiff 

prevailed AND on issues as to which production was not received until after the 

filing of the motion to compel, and will not reach back to a prior motionBdeclared 

moot because of ongoing negotiations between counselBwhich addressed the same 

issues. Where it appears that defendant was, in good faith, attempting to complete 

discovery requests prior to the filing of the plaintiff=s Motion, plaintiff should not 

seek fees for moving to compel such production. 

Order, doc. 132 at 5-6, n. 5. Despite these guidelines, plaintiffs’ request for fees include matters for 

which the court indicated it would not grant fees, including particularly the subjects of discovery 

requests as to which defendant was actively in the process of producing at the time of the motion.5

 

Additionally, plaintiffs= counsel overreaches by attempting to justify hourly rates greatly in excess of 

those paid by the court to attorneys in this market.6 

Plaintiffs offer the affidavit of Attorney Candis McGowan, who states that she is the partner 

in charge of this matter for her firm. She indicates that three other partners, one associate and one 

 5

 Specifically, on-going bona fide efforts to comply with discovery requestsBespecially 

where the parties had agreed to the productionBare an indication of an inadequate effort to satisfy the 

conferencing requirement or otherwise fall within the exception for Aother circumstances [which] 

make an award of expenses unjust.@ Fed.R.Civ.P. 37(a)(5)(A). 

The court also said that it would not award fees for work done on a prior Motion to Compel 

which had been denied as moot. (See docs. 93, 117) However, in reaching a reasonable fee for the 

successful portions of the final motion to compel, the court may include time spent previously on 

issues raised in the final motion, where the prior time could reasonably be found to have reduced the 

time needed to prepare and file the final motion to compel. 

6

 Extra-market rates are justified in certain cases. See Am. Civil Liberties Union of Ga. v.

Barnes, 168 F.3d 423, 437 (11 Cir. 1999). Plaintiffs= counsel attempts to justify such rates because 

few Title VII cases have been filed in this district as class actions. The instant case has not been 

certified as a class action, and so none of the additional expertise which plaintiffs= counsel asserts is 

associated with Title VII class actions has been required at these preliminary stages; the court finds 

local market rates to be adequate and proper. Likewise, high-end local rates are unreasonable in 

relation to the discovery dispute at issue. Accordingly, the court will attempt to estimate a 

reasonable fee for a reasonable motion to compel concerning defendant=s pay data, plus a reasonable 

fee for the motion to compel as to the remaining issues. 

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paralegal have assisted with the case. She states that her firm is entitled to a total of $19,797.50 for 

the preparation of the Amotions@ subject to the award of fees under Rule 37. Given the nature of the 

motion to compel, this figure is unreasonably high. The plaintiffs= failure until recently to clearly 

define and formally state their request for employment dataBthe primary issue in the successful 

Motion to CompelB has led to the complication of that issue, which should otherwise have been 

reasonably straightforward.7

 Had this issue been addressed in a more reasonable manner then, even 

if a Motion to Compel had been required, the time plaintiffs= counsel would reasonably have spent 

on such a motion would have been less than is now claimed. 

Plaintiffs= seek hourly rates of $110/hour for work by a paralegal, $200/hour for an associate 

with three years experience, and between $350 and $550/hour for the four partners. As noted, there 

has been no special need for class action expertise which would arguably justify extra-market rates 

and nothing in the motion to compel was extraordinarily difficult or technical as to require special 

expertise, let alone the attention of four partners, an associate and a paralegal. The involvement of 

four partner-level attorneys makes duplication of effort likely. Even if the court were to assume that 

involvement of all five attorneys was within the realm of professional reasonableness, the record 

does not support a finding that such expense should be charged to defendant. 

 Additional items sought in the motion to compel

Much of the motion to compel was unnecessary, concerning matters which the court found to 

be moot because the parties were in agreement on the plaintiffs= entitlement to the requested 

 7

 While plaintiff quickly requested the databases once a deposition revealed their existence, 

prior to that time, defendant correctly noted that plaintiff=s definition of pay records was a moving 

target. Nonetheless, defendant falsely stated that it should not be required to produce such 

information because such production would be unduly burdensome; disclosure of the existence of 

the computerized records should have been made immediately, after reasonable investigation, rather 

than only after plaintiffs deposed defendant=s employees. 

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discovery and defendants were in the process of producing such information without the necessity of 

court involvement. As set forth in plaintiff=s Motion, defendant responded to other discovery 

requests only after plaintiffs filed their Motion: 

 8(a). All emails related to complaints, incidents, investigations, photographs and 

physical evidence of alleged discrimination or retaliation. 

 9. All documents related to complaints, incidents, investigations, photographs and 

physical evidence of alleged discrimination or retaliation of related to any named 

plaintiff maintained by supervisors, coordinators and/or managers. 

 10. All documents related to complaints, incidents, investigations, photographs and 

physical evidence of alleged discrimination or retaliation of related to any named 

plaintiff maintained by senior and executive management. 

 19. Copies of the Coordinator=s discipline book identified by Chris Robinson. 

 21. All documents relating to all promotions to First Line Supervisor positions in 

Production from 2002 to the present. This would include, but is not limited to, 

documents generated and maintained under the current and previous processes. 

Included in this request are all policies and supplemental policies not produced, 

applications, interview documents, list of those considered, reason(s) for selection, 

rating of candidate, qualifications for position, and all documents generated by 

selection panels, Human Resources, and selecting officials. 

 23. All maintenance records from Site Services regarding the reporting or cleaning 

of racial incidents including racial epithets located on defendant=s property. 

 

 25. All documents setting forth reason or basis for selection of employees to First 

Line Supervisor in Production from 2002 to the present. 

 29. All statistical and/or economic analyses, job analyses, validation studies, or 

impact studies/analyses conducted by or for the defendant relating to hiring, 

promoting, transferring, compensation, disciplining, and/or terminating employees 

and all supporting data and documents upon which each such study or analysis was 

based or that were provided to or received from any expert or consultant. This 

request was included in Plaintiffs= First Request for Production of Documents #6. 

The court previously denied plaintiff=s motion to compel several of these requests, on the 

basis that defendant had acknowledged plaintiff=s entitlement to the information and had stated that 

Case 1:08-cv-00155-KD-N Document 148 Filed 06/16/10 Page 6 of 16
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it had or would produce the information and documents immediately. See Order, doc. 132, at 3-4.8 

At the time of plaintiffs= reply, plaintiffs claimed only that the email communications, as well as the 

disciplinary notebooks and files maintained by supervisors and managers remained outstanding. 

With regard to all other discovery requests, plaintiffs implicitly acknowledged their production. The 

correspondence between the parties prior to the filing of the motion to compel indicates that 

defendant intended and undertook to produce all other information; thus, it does not appear that the 

inclusion of those items in the motion to compel was necessary, nor that the negotiation process had 

broken down so as to satisfy the conferencing requirement of Rule 37. 

Plaintiffs= submissions do not convince the court that defendant=s stated efforts to comply 

with outstanding discovery requests, where it did so shortly after the filing of the motion to compel, 

were mere shams. Accordingly, the court does not find an award of fees for prevailing on the 

motion to compel such additional discovery to be appropriate or reasonable. 

However, the court granted plaintiffs= motion with regard to one additional issue. Plaintiff 

sought an order enforcing an agreement between plaintiffs= counsel and the former attorneys for 

 8

 The order relates only to those matters which remained pending as of the date of the Reply, 

and states as follows: 

Defendant acknowledged in its Response (doc. 130 at 4-5) that it had not 

produced all responsive email communications, but anticipated that process would be 

completed by February 19, 2010. Upon defendant=s representation that such 

production has been or will be immediately provided, along with a privilege log of 

responsive materials not provided, the court declines to compel its production. 

Defendant has stated in correspondence (doc 128, Exh. B) that it was still 

gathering, and would produce, disciplinary notebooks and files kept by supervisors 

and managers. Again, accepting that defendant has or will immediately produce 

these materials, the court will not here compel their production. 

Additionally, the court held that, on the basis of defendant=s representation that the privilege 

log had been presented, plaintiffs= request that the court compel its production was moot; if 

defendant erred in claiming that it had been completed, it would bear the burden of justifying any 

later supplementation to the privilege log. 

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defendant, which defendant=s new attorneys sought to avoid. The court compelled defendant to 

inform plaintiffs= counsel of the number and identities of all persons it intends to designate as its 

Rule 30(b) representatives for the topics identifies. Plaintiffs are entitled to an award of fees on that 

issue. 

 Lodestar

Reasonable number of hours expended

Plaintiffs claim entitlement to 68.95 hours of work on the motions to compel, broken down 

as follows [doc. 135 exh. A]: 

Attorney First M/Compel9

 Current M/Compel

McGowan [partner] 11.1 18.7 

Child [partner] 3.5 0.0 

Robertson [partner] .2 .6 

Calamusa [partner] 0.0 7.25 

Kiser [associate] 7.7 14.9 

Allen [paralegal] 2.8 2.2

TOTAL 25.3 43.65 

There are a few entries for work which is beyond the scope of ‘making the motion’, 

Fed.R.Civ.P. 37(a)(5). The court does not award fees for compliance with the pre-filing 

conferencing requirement or for conducting discovery; the court holds that such efforts are part of 

the attorneys’ general duties in conducting discovery and are not part of the time spent in the making 

of the motion to compel. Thus, the court reduces the plaintiffs’ claim as follows: 

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▪▪1.25 hours from Attorney Calamusa’s time for his 1/22/10 entry “Letter to defendant 

regarding discovery; FOIA request and letter”; 

▪▪.2 hours from Attorney McGowan’s time for her 1/25/10 entry concerning Mr. Calamusa’s 

letter and her conference with him regarding the same; 

▪▪.5 hours from Attorney Kiser’s time for a conference call with defense counsel on 1/27/10; 

▪▪.25 hours from Attorney Calamusa’s time, representing one half of the entry of 2/13/10, as 

it relates to “receipt of email letter from defense counsel”; and 

▪▪.3 hours from Attorney Kiser’s time, 1.7 hours of Attorney McGowan’s time, and .5 hours 

from Attorney Robertson’s time for their entries dates March 18, 2010, concerning review of the 

court’s order on the motion to compel. 

The adjusted claims for compensable time are as follows: 

Attorney First M/Compel Current M/Compel

McGowan [partner] 11.1 16.8 

Child [partner] 3.5 0.0 

Robertson [partner] 0.2 0.1 

Calamusa [partner] 0.0 5.75 

Kiser [associate] 7.7 14.1 

Allen [paralegal] 2.8 2.2

TOTAL 25.3 38.95 

With regard to the current motion to compel, this figure of 38.95 hours represents the hours 

claimed by plaintiffs’ counsel for activities which are properly related to that motion. The court’s 

 9

 Plaintiff filed a motion to compel and thereafter notified the court that the parties were conferring 

with regard to defendant’ responses; the court thus found the first motion to compel to be moot. 

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inquiry does not stop there, however, as it must determine the reasonable amount of time spent on 

the portions of the motion as to which plaintiffs were successful. The issues raised in the discussion 

underscore the difficulties in determining a reasonable amount of time for work on the portions of 

the motion to compel which the court has found to be compensable. Though plaintiffs have 

submitted reasonably detailed time records, they are inadequate to enable the court to identify 

specific time entries related to unsuccessful claims, work performed in the prior motion to compel 

that avoided duplicative work on the latter motion, and to identify with precision the unnecessary 

overlap between the legitimate, necessary efforts of the four partners in the drafting of the motions. 

These limitations make differentiating between compensable and noncompensable time in a 

particularly difficult in an item-by-item calculation. Accordingly, the court utilizes its own 

expertise to establish a reasonable number of hours for the successful portions of the motion to 

compel. “When a district court finds the number of hours claimed is unreasonably high, the court 

has two choices: it may conduct an hour-by-hour analysis or it may reduce the requested hours with 

an across-the-board cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). 

As the court has previously noted, plaintiffs have argued reasonably that some of the time 

spent in preparing the first motion to compel should be allowed as costs of the second motion to 

compel because some of the preparation for the first motion was used to draft the second. The court 

is prepared to reconsider that language in its order granting the petition for fees that indicates that it 

would not consider time spent on the first motion to compel. However, the time records do not show 

a large benefit from the work done on the first motion; after adjustment of the time claimed, the 

second motion took at least half again as long as the first one to prepare. Attorney Calamusa did not 

become involved in the first motion, but claims over five hours work on the second, and other 

 

That order was entered on December 22, 2009. (Doc. 117) 

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attorneys charged for conferring with him. Mr. Calamusa’s expertise, for which he claims 

entitlement to a greater hourly rate than the other attorneys, does not appear necessary to the making 

of the motion. The court is unaware of such distinct differences between the two motions that the 

latter reasonably should have taken so much longer to draft than the first, and the plaintiffs’ motion 

does not clarify these issues. This is rendered even more surprising because of the similarities 

between the motions and the claimed economies gained by reliance on portions of the first motion. 

The pay data was the primary issue in the motion to compel, and properly took most of 

counsel’s efforts to present. The subsidiary issues addressed in their motion to compel, both 

successful and unsuccessful, seem reasonably to have taken less than that amount of time The court 

finds a 33% reduction in the hours claimed by the attorneys [as opposed to the paralegal] to be 

sufficient to address the time spent on the unsuccessful claims raised and argued by plaintiffs. A 

further reduction of 10% is deemed sufficient to address duplication of effort among the many 

attorneys involved; however, the court finds a 10% increase sufficient to allow for time saved by 

reliance on the first motion to compel, cancelling out the reduction for duplication of effort; again, 

this does not apply to the time spent by the paralegal. 

In deciding on a reasonable number of hours, the court notes that defendants bear significant 

responsibility for making the discovery issues in this case unnecessarily contentious, and that—

knowing defendant would energetically oppose any discovery motion—plaintiffs may reasonably 

have spent more time and effort preparing the motion than might otherwise have been reasonable. 

Because, as addressed below, there is no indication that work on the motion to compel justified 

greater experience than that of Attorney McGowan, the court will not separately calculate hours 

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expended by all four partners10 but rather will determine the time spent by the partners jointly [at the 

rate applicable to Ms. McGowan], the associate and the paralegal. 

Accordingly, the court finds the following hours to have been reasonably expended in 

drafting the motion to compel: 

Attorney Hours

Partners 15.2 

Kiser [associate] 9.4 

Allen [paralegal] 2.2 

Reasonable hourly rates

 Plaintiffs’ counsel seeks an award of attorneys’ fees based on hourly rates of $110.00 for 

MS. Allen, the paralegal; $200.00 for an associate with three years experience well above the 

market rate in this district. The court has addressed above its reasons for finding that no extradistrict compensation is warranted for fees on this motion. As further addressed above, a single rate 

for all partner-level attorneys is appropriate. Attorney McGowan is identified as having been in 

charge of the preparation of the motion, and the court will use the rate applicable to her for the hours 

reasonably expended by all partners. 

 Plaintiffs seek an award for Attorney McGowan’s time based on an hourly rate of $400.00 

per hour. Ms. McGowan has twenty-two years experience as a lawyer, including experience 

litigating employment discrimination cases. Defendant argues that a reasonable fee in this market 

should be the same as was previously set for defendant’s counsel in this case who had 19 years of 

 

10 Keeping track of separate hours for each attorney will make it difficult to calculate the time 

expended, particularly as the court has included some time spent in preparation of the first motion to 

compel. Attorneys Calamusa seeks an award of $350.00/hour, and Attorney McGowan seeks 

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experience--$240.00 per hour. They also suggest that a reasonable fee for Attorney Kiser, who is an 

associate with three years experience, is $150.00 per hour, rather than the $200.00 per hour 

requested by plaintiffs. Finally, plaintiffs request that the time worked by the paralegal, Ms. Allen, 

be billed at a rate of $110.00 per hour. 

 The court, utilizing its own expertise in this market as well as a review of prior awards, has 

determined hourly rates it deems reasonable and appropriate for work on the instant motion. 

Multiplying these rates by the hours reasonably expended yields the following figures: 

Name Reasonable Rate Reasonable Hours Fee 

Attorney McGowan [& partners] $250.00 15.2 hours $3800.00 

Attorney Kiser $150.00 9.4 hours $1410.00 

Ms. Allen $75.00 2.2 hours $ 165.00

TOTAL $5375.00 

Johnson Factors

 The lodestar figure established by the court above may be adjusted by consideration of 

various factors originally set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 718 

(5th Cir. 1974).11 The Supreme Court has held, in Blum v. Stenson, 465 U.S. 886, 897 (1984) that 

 

$400.00/hour. Any slight difference, up or down in the final award of fees caused by this 

simplification will likely be insignificant. 

11 Blanchard v. Bergeron, 489 U.S. 87, 92 n.5 (1989) stated: 

The 12 factors set forth by the Johnson court for determining fee awards...are: (1) 

the time and labor required; (2) the novelty and difficulty of the questions; (3) the 

skill requisite to perform the legal service properly; (4) the preclusion of other 

employment by the attorney due to acceptance of the case; (5) the customary fee; (6) 

whether the fee is fixed or contingent; (7) time limitations imposed by the client or 

the circumstances; (8) the amount involved and the results obtained; (9) the 

experience, reputation, and ability of the attorneys; (10) the “undesirability” of the 

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““[w]hen ... the applicant for a fee has carried his burden of showing that the claimed rate and 

number of hours are reasonable, the resulting product is presumed to be the reasonable fee” to which 

counsel is entitled. Further, the Court has limited which factors may be considered in considering an 

adjustment to the lodestar figure. 

[W]e specifically held in Blum that the “novelty [and] complexity of the issues,” “the 

special skill and experience of counsel,” the “quality of representation,” and the 

“results obtained” from the litigation are presumably fully reflected in the lodestar 

amount, and thus cannot serve as independent bases for increasing the basic fee 

award. 465 U.S., at 898-900, 104 S.Ct., at 1548-1550. Although upward adjustments 

of the lodestar figure are still permissible, id., at 901, 104 S.Ct., at 1550, such 

modifications are proper only in certain “rare” and “exceptional” cases, supported by 

both “specific evidence” on the record and detailed findings by the lower courts. See 

id., at 898-901, 104 S.Ct., at 1548-1550. 

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564-65 (1986). 

 The court finds that the instant motion to compel does not present such a rare or exceptional 

case as to warrant an adjustment of the lodestar figure. Accordingly, the undersigned finds that 

plaintiff’s motion for fees is due to be granted in part and plaintiffs’ counsel is entitled to fees in the 

amount of $5,375.00. 

Motion for Extension of Time for Expert Reports

 Plaintiffs seek an extension of time to submit their expert’s report, based on the delays in 

obtaining the relevant employment data from defendant. The digital information was produced on 

April 1, 2010, only after an order from the court to do so. Defendant’s encryption of the databases, 

as well as the need for plaintiffs to obtain their own copies of the programs which produced that 

data, led to further reasonable delays. The current deadline for production of the report, May 17, 

2010, has passed. 

 

case; (11) the nature and length of the professional relationship with the client; and 

(12) awards in similar cases. 

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 Defendant objects to the requested extension on two grounds: (1) that plaintiff only sent a 

single email about the extension and waited only a day for a response from defendant’s counsel 

before filing the motion, and (2) that plaintiffs have not demonstrated diligence. The court’s 

Scheduling Order (doc. 43) made clear that the court required counsel to confer in good faith prior to 

filing discovery motions, including “any motion for extension of time on discovery-related 

motions.” Though plaintiffs argue that Rule 37(a) does not impose such a requirement except on 

motions to compel, the specific order of the court is adequate to impose such a duty regardless of the 

scope of a related or parallel duty imposed by the Rules.12 

 Regardless, where, as here, the history of the parties’ prior dealings—especially on previous 

similar motions for extension of the plaintiffs’ expert deadlines based on the defendant’s failure to 

produce the same information—could reasonably have led plaintiffs’ counsel to believe that there 

was little likelihood of successful conferencing.13 The court finds that the email, with a full day 

allowed for response, was adequate in this situation, particularly as the issue of this looming 

deadline and the effect of the delay in production of the needed records were known to all parties. 

Against this background, a single contact and a one-day deadline allowed for response is not 

unreasonable. 

 As to the plaintiffs’ showing of diligence, the court is satisfied on this element. As noted 

elsewhere, plaintiffs have sought this information for some time. Their current efforts—a successful 

motion to compel, and subsequent efforts to render the production usable—are adequate. 

 

12 The court has previously held the parties to this action to such a requirement. See doc. 70. 13 The fact that defendant did not respond and thereafter has fought plaintiffs’ reasonable request for 

additional time on grounds previously rejected by this court further supports the reasonableness of 

plaintiffs’ assumption. 

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Accordingly, plaintiffs’ motion for extension of time is GRANTED. Plaintiffs’ expert reports are 

due no later than August 16, 2010. 

Motion for Extension of Time for Dispositive Motions

Defendants have also filed a motion seeking an extension of time of in which to file 

dispositve motions. In response to the motion, plaintiffs state that they have no objection and 

state that “[t]he parties jointly request that this Court move all filings that are currently due on 

July 1, 2010, to forty-five days after Plaintiffs’ Expert Report is submitted since both parties 

need this report for their respective motions.” (Doc. 147) The motion is GRANTED. The 

deadlines for filing dispositive motions and for a motion for class certification are EXTENDED 

to September 30, 2010. 

Conclusion

 For the foregoing reasons, it is hereby ORDERED that plaintiffs’ Motion for Award of 

FEES is GRANTED in part and DENIED in part; and that defendant’s counsel shall pay to the 

plaintiffs, no later than June 21, 2010, the sum of $5,375.00. It is further ORDERED that 

plaintiffs’ Motion for Extension of Time is GRANTED and that the deadline for plaintiff to 

serve defendant with the report of its expert, and to identify said expert, is extended to August 

16, 2010. Finally, defendant’s Motion for Extension of Time is GRANTED and that the 

deadlines for the filing of dispositive motions and a motion for class certification are extended to 

September 30, 2010. 

 DONE and ORDERED this the 16th day of June, 2010. 

 /s/ Katherine P. Nelson 

 KATHERINE P. NELSON 

 UNITED STATES MAGISTRATE JUDGE 

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