Sequatchie Mountain Creditors et al v. Detweiler et al

OCR transcription for search; preserved printed pages are authoritative

The court incorporates by reference in this paragraph and adopts as the findings and orders
of this court the document set forth below.

is

Russ Kendig
United States Bankruptcy Judge

Ged

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO

EASTERN DIVISION
IN RE: ) CHAPTER 11
)
JOSEPH J. DETWEILER, ) CASE NO. 09-63377
)
Debtor. ) ADV. NO. 09-6118
)
SEQUATCHIE MOUNTAIN ) JUDGE RUSS KENDIG
CREDITORS, )
| )
Plaintiff, )
)
Vv. ) MEMORANDUM OF OPINION
) (NOT INTENDED FOR
JOSEPH J. DETWEILER, ) PUBLICATION)
Defendant.

On July 6, 2011, the court awarded Defendant’s counsel reasonable expenses related
to a motion to compel filed on March 18, 2011. Defendant submitted an itemized statement,
to which Plaintiffs objected. The court now determines the actual amount of the award.

The court has jurisdiction of this proceeding pursuant to 28 U.S.C. § 1334 and the
general order of reference entered in this district on July 16, 1984. Venue in this district and
division is proper pursuant to 28 U.S.C. § 1409. This is a core proceeding under 28 U.S.C.

§ 157(b)(2)(D.

This opinion is not intended for publication or citation. The availability of this
opinion, in electronic or printed form, is not the result of a direct submission by the Court.

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The court will not reiterate the facts leading to the fee award. What is before the
court is an itemization of fees totaling $4,735.05, which the court finds patently
unreasonable. As Plaintiffs point out, some of the work itemized concerns general litigation
and much of the itemized time is for work done after the motion and order to compel were
entered. All time related to discovery or the case is not recoverable. Only time related to the
motion to compel is recoverable. It is unclear how most of the entries pass this requirement.

The motion to compel was a straight-forward, five page motion. Plaintiffs did not
object to the motion and no hearing was required. A review of the itemization shows
approximately ten entries specifically reference the motion to compel. These are condensed

as follows:
03/17/2011 SRW 40 $ 72.00
03/17/2011 SRW 30 $ 54.00
03/17/2011 SRW 50 $ 90.00
03/17/2011 SRW A0 $ 72.00
03/18/2011 SJA 30 $ 34.50
04/11/2011 MHP 30 $ 34.50
04/11/2011 MHP 40 $ 46.00
04/12/2011 SMZ 50 $100.00
04/20/2011 MHP 20 $ 23.00
04/28/2011 SMZ .20 $ 40.00

3.50 $566.00

Upon review of the itemization, it appears that $322.50 was charged for the motion and
$243.50 for the order. Since the order to compel was entered on April 20, 2011, the court
finds the last entry was not reasonably related to the work expended on the motion or order
to compel. The first entry entered on April 11, 2011 appears to charge for internal office
communications, which the court will disregard. Therefore, an award of $491.50 is

reasonable.

In the objection to the itemization of fees, Plaintiff's counsel argues that it is unjust
to require counsel to pay fees for two reasons. First, counsel had no control over the
timeliness of the responses once the discovery sent to plaintiffs. Second, because of the
number of plaintiffs, discovery was voluminous and a presenting “daunting” challenge. Part
of client representation is the ability to manage both clients and the case. There is no
unjustness in awarding fees for failing to abide by the federal rules of discovery, especially
in this case. Discovery was served on April 1, 2010 and the motion to compel was filed on
March 18, 2011. Plaintiffs never sought leave for additional time to respond to the requests.

Plaintiffs’ objection to the fees will be sustained, in part. An order will be issued

contemporaneously with this decision.
# # #

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Service List:

Peter G. Tsarnas
Goldman & Rosen, Ltd.
11 South Forge Street
Akron, OH 44304

Scott M Zurakowski

PO Box 36963

4775 Munson St NW
Canton, OH 44735-6963

Anthony J DeGirolamo
116 Cleveland Ave., N.W.
Suite 307

Canton, OH 44702

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