Trs. of the Iam Nat'l Pension Fund v. M & K Emp. Sols.

Decision Date05 December 2022
Docket Number1:20-cv-433-RCL
PartiesTRUSTEES of the IAM NATIONAL PENSION FUND, Plaintiffs, v. M & K EMPLOYEE SOLUTIONS, LLC, et al., Defendants.
CourtU.S. District Court — District of Columbia

TRUSTEES of the IAM NATIONAL PENSION FUND, Plaintiffs,
v.

M & K EMPLOYEE SOLUTIONS, LLC, et al., Defendants.

No. 1:20-cv-433-RCL

United States District Court, District of Columbia

December 5, 2022


MEMORANDUM OPINION

ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

Before the Court are two motions by plaintiffs, the Trustees of the IAM National Pension Fund (“the Trustees”), to recover from defendants M & K Employee Solutions, LLC, M & K Employee Solutions, LLC-Alsip, M & K Employee Solutions, LLC-Illinois Leasing, M & K Employee Solutions, LLC-Joliet, M & K Employee Solutions, LLC-Northern Illinois, and M & K Employee Solutions, LLC-Summit (together, “the M & K Employee Solutions Defendants”) and defendant Laborforce, LLC attorneys' fees and costs incurred in connection with three depositions in this matter that those defendants abruptly canceled and later rescheduled. The first motion seeks attorneys' fees incurred in preparing for those depositions, see ECF No. 124, while the second motion seeks attorneys' fees and costs incurred in taking them, see ECF No. 133.

Both motions followed a Memorandum Opinion from earlier this year in which this Court, among other things, indicated that it would “sanction the defendants for failing to appear” at the depositions, “but not for opposing the [Trustees'] successful motion to compel” them. Trustees of the IAM Nat'l Pension Fund v. M & K Empl. Solutions, LLC, (“IAM IF), No. 20-cv-433-RCL, 2022 WL 594539, at *13 (D.D.C. Feb. 28, 2022). Upon further reflection, the portion of that

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Opinion concerning attorneys' fees was inadequately explained, and so the Court will reconsider sua sponte its conclusion regarding the particular expenses to be awarded. The Court will therefore DENY both motions for attorneys' fees without prejudice and consider further motions for attorneys' fees incurred in litigating the successful motion to compel under the standards that follow.

I. BACKGROUND

The Court explained the broader factual and procedural background of the case at length in two previous Memorandum Opinions. See 1AM II, 2022 WL 594539, at *1-5; Trustees of the IAM Nat'l Pension Fund v. M & K Empl. Solutions, LLC “IAM I:), No. 20-cv-433-RCL, 2021 WL 1546947, at *1-3 (D.D.C. Apr. 20, 2021). Therefore, the Court will summarize here only the background information pertinent to the present motions for attorneys' fees and costs.

This case grows out of a dispute over defendants' liability under the Multiemployer Pension Plan Amendments Act (“MPAA”), which amended the Employee Retirement Income Security Act (“ERISA”), for withdrawing from the IAM National Pension Fund (“the Fund”), a multi employer pension plan. Over a year after the Trustees filed this action, on July 13, 2021, an arbitrator determined that the Fund had improperly assessed the amount of defendants' withdrawal liability and ordered the Fund to recalculate that amount. IAM II, 2022 WL 594539, at *4. That same day, the M & K Employee Solutions Defendants and Laborforce canceled their respective depositions, which were scheduled to take place over the two days that followed. Id. at *12. The Trustees moved to compel those depositions and for an award pursuant to Federal Rules of Civil Procedure 37(a)(5) and 37(d)(3) of attorney's fees and costs incurred in litigating the motion to compel and in preparing for, and eventually taking, the depositions. See ECF No. 90.

In a February 28, 2022 Memorandum Opinion addressing a host of motions, the Court indicated that it would sanction the M & K Employee Solutions Defendants and Laborforce

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pursuant to Rule 37 by granting an award of attorney's fees and costs incurred in preparing for and taking the depositions, but not those incurred in preparing the motion to compel. Id. at *12-13. In the accompanying Order, the Court instructed “the Trustees to brief the Court on the proposed amount of attorneys' fees expended in preparing for the aborted depositions.” Feb. 28,2022 Order at 1, ECF No. 116.

On March 14, 2022, the Trustees moved for attorneys' fees incurred in preparing for the aborted depositions, requesting an award of $30,670.00, “payable by the M&K Employees Defendants, Laborforce, and their respective counsel.” Mem. in Supp. of Pls.' Mot. for Atty. Fees at 6, ECF No. 124-1. Thereafter, the Trustees re-noticed those depositions and conducted them on April 14 and 18, 2022, with the M & K Employee Solutions Defendants and Laborforce both designating Chad Boucher and Laura Schneider as deponents and Laborforce also designating Josh Wolf as a deponent. Decl, of Neil V. Shah (“Shah Decl. II”) ¶¶ 6-7, ECF No. 133-2. The Trustees then filed a further motion for attorneys' fees and costs incurred in taking them, requesting $32,697.15 “payable by the M&K Employees Defendants, Laborforce, and their respective counsel.” Mem. in Supp. of Pls.' Mot. for Atty. Fees and Costs at 6, ECF No. 133-1; Pls.' Reply in Supp. of Mot. for Atty. Fees and Costs at 4-5, ECF No. 145.[1] Both motions are now ripe for review.

II. LEGAL STANDARDS

When a court grants a motion to compel discovery pursuant to Federal Rule of Civil Procedure 37(a), “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

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both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees,” unless “(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.” Fed.R.Civ.P. 37(a)(5)(A).

Federal Rule of Civil Procedure 37(d)(3) further provides that courts must sanction parties who fail to appear at their own depositions by, among other options, requiring “the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Such expenses may include paralegals' fees as well as attorneys' fees. See, e.g., Walker v. District of Columbia, 317 F.R.D. 600, 606-07 (D.D.C. 2016). Rule 37(d)(2) specifically provides that a party's failure to appear at a deposition “is not excused on the ground that discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed.R.Civ.P. 37(d)(2).

When a court grants an award of attorneys' fees and costs under Rule 37, “[t]he initial estimate for attorneys' fees is calculated by ‘multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.'” DL v. District of Columbia,...

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