United States District Court, W.D. Texas, Austin Division
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
the Court are Defendants' Motion for Attorney's Fees
(Dkt. No. 27); Plaintiffs' Response (Dkt. No. 31); and
Plaintiff's Motion to Vacate Sanctions (Dkt. No. 33). The
District Court has referred all motions in the above case to
the undersigned Magistrate Judge.
February 9, 2018, this Court granted in part Sentry
Link's Motion for Sanctions (Dkt. No. 26) and ordered
payment of attorney's fees and costs reasonably incurred
in preparing the motion for sanctions and to compel.
Fed.R.Civ.P. 37(a)(5)(A). The Court then ordered Sentry Link
to file its request for attorney's fees, which Sentry
Link did on February 23, 2018. Dkt. No. 27. In this motion,
Sentry Link requested $7, 057.00 in attorney's fees for
preparation of the above motion, $250.00 for the cost of the
missed deposition, and an additional $465.50 in
attorney's fees to draft the instant motion. Dkt. No. 27
at 4-5. Attached to counsel's affidavit are the hourly
logs and videographer bill. Id. at 6-7.
responded to this motion with two arguments, neither of which
are persuasive. First, Walters points to a mistake in Sentry
Link's calculation of attorney's fees. The total for
attorney's fees owed, as shown on the hourly log, amounts
to $7, 159.00, not $7, 057.00. Dkt. No. 31 at 2; Dkt. No. 27
at 6. It appears that a single entry for $102.00 was
inadvertently excluded from the total. Id. (showing
an entry on December 20, 2017 for $102.00 to “[r]eview
Plaintiff's Second Supplemental Disclosures”).
Walters absurdly argues that this is perjury, and requires
this Court to deny the motion entirely. However, a mere
miscalculation in adding the fees is clearly not a reason to
deny the attorney's fees requested.
also points to three specific line items that he argues
should not be included in the total. The first was for
counsel to attend the deposition that Walters missed. Walters
argued that billing 1.5 hours to wait for him to appear at
the scheduled deposition is excessive. Not only is this time
not excessive, it is incredible that Walters should object to
attorney's fees during the missed deposition that is
nearly the entire basis for the order for discovery
sanctions. Similarly, Walters' objection to the time used
to review the second supplemental disclosures fails. Merely
because the disclosures were not specifically mentioned in
the motion to compel does not mean that review of the
documents was not relevant to the preparation of the motion.
And the fact that they were reviewed two days after being
received is clearly not a valid objection. Finally, Walters
objects to Sentry Link's request for attorney's fees
incurred in preparing the instant motion. Here, Sentry Link
did not file the hourly logs for these particular times.
However, the affidavit clearly states the number of hours
each attorney spent preparing the motion, and Walters has not
argued that the amounts were excessive.
Walters filed an additional motion seeking to vacate this
Court's award of sanctions. Dkt. No. 33. Walters again
made the allegations that the attorney's fees
miscalculation was perjury, which as discussed above, is
frivolous. He additionally points to a statement Sentry Link
made in its motion, which claimed that “Plaintiff
informed Defendant's counsel that Plaintiff does not
intend to pay the attorneys' fees awarded in the
Court's February 9, 2018 Order.” Dkt. No. 27 at 5.
Here, Walters argues that, not only is this statement false,
but it was made with malice, and should be the basis for
sanctions against Sentry Link. However, this allegedly false
statement is not related to this Court's sanction of
Walters for his failure to appear at the scheduled
deposition, and is not a reason to vacate the discovery
sanctions. In this motion, he has not presented any valid
reasons for this Court to vacate its earlier discovery
sanctions against Walters.
also appears to request sanctions against Sentry Link for its
alleged false statement. However, a party may not file a
motion for sanctions under Rule 11 without first serving the
motion on the offending party and then giving their opponent
21 days to withdraw the offending pleading. Fed.R.Civ.P.
11(c)(2). This “safe harbor” provision gives the
party “an opportunity to withdraw or correct the
offending contention.” Elliott v. Tifton, 64
F.3d 213, 216 (5th Cir. 1995). The “plain language of
the rule indicates that this notice and opportunity prior to
filing is mandatory.” Id. Here, Walters filed
this motion only eight days after the affidavit was filed
with the motion for attorney's fees. Thus, it is clear
that Walters has not complied with the twenty-one day
safe-harbor, and his request for sanctions must be denied.
the undersigned GRANTS Sentry Link's
Motion for Attorney's Fees (Dkt. No. 27), and
ORDERS Walters to pay Sentry Link's
reasonable attorney's fees and costs in the amount of $7,
874.50. Further, the Court
DENIES Walters' Motion to Vacate
Sanctions (Dkt. No. 33).
This amount includes the $102.00
that was excluded from the total provided in the affidavit.
It is clear that this amount was merely ...