Case 3:16-cv-02579-B Document 31 Filed 05/25/17 Page 1 of 7 TylerPageID 347

J. Bexley
Attorney


tyler.bexley@rgmfirm.com

p (214) 382-9805

f (214) 501-0731

May 25, 2017

Via ECF Filing

The Honorable Paul D. Stickney
United States Magistrate Judge
1100 Commerce Street, Room 1611
Dallas, Texas 75242

Re: Avi S. Adelman v. Dallas Area Rapid Transit, et al., Case No. 3:16-cv-2579,
in the United States District Court, Northern District of Texas

Dear Judge Stickney,

Pursuant to Judge Boyles April 10, 2017 Order of Reference [Dkt. #19], Plaintiff
Avi S. Adelman files this Reply in Support of his Motion for Attorneys Fees Pursuant to
Rule 37 with a transmittal letter directed to your attention.

Respectfully,

Tyler J. Bexley

750 N. Saint Paul St. | Suite 600 | Dallas, TX 75201
 Case 3:16-cv-02579-B Document 31 Filed 05/25/17 Page 2 of 7 PageID 348

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

AVI S. ADELMAN,

Plaintiff,

v. CIVIL ACTION NO. 3:16-cv-2579

DALLAS AREA RAPID TRANSIT and
STEPHANIE BRANCH, individually and in
her official capacity as a Dallas Area Rapid
Transit Police Officer,

Defendants.

PLAINTIFFS REPLY IN SUPPORT OF MOTION

FOR ATTORNEYS FEES PURSUANT TO RULE 37

DART failed to produce responsive documents and to provide complete answers to

discovery requests, despite having over two months from when Adelman first notified

DART of discovery deficiencies to when Adelman filed his Motion to Compel. In fact,

DART still has not complied with its discovery obligations, despite the Courts May 4,

2017 Order granting Adelmans Motion to Compel. (See Dkt. #28.) DARTs Response

to Adelmans Motion for Attorneys Fees discusses DARTs counsels busy schedule and

addresses reasons why DART initially did not produce records of Officer Branchs prior

disciplinary history. Notably absent from DARTs Response, however, is anything that

would rise to the level of substantial justification for DARTs continued failure to answer

relevant requests for admission and interrogatories. Because there was no justification for

DARTs failure to answer the discovery that was the subject of Adelmans Motion to

Compel, the Court must award attorneys fees to Adelman pursuant to Rule 37.

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ARGUMENT

Under Rule 37, the court must, after giving an opportunity to be heard, required

the party . . . whose conduct necessitated the motion [to compel] . . . to pay the movants

reasonable expenses incurred in making the motion, including attorneys fees. FED. R.

CIV. P. 37(a)(5)(A) (emphasis added). There are three situations in which a court should

not award attorneys fees, but DART focuses only on one: whether the opposing partys

nondisclosure, response, or objection was substantially justified. Id.

DART failed its burden to demonstrate that its noncompliance with the discovery

rules was substantially justified, requiring an award of attorneys fees under Rule 37.

Adelmans request for $5,070 in fees is reasonable, and the Court should reject DARTs

arguments to the contrary.

A. DARTs failure to fully respond to discovery was not substantially justified.

As explained in Adelmans Motion for Attorneys Feesand not addressed in

DARTs ResponseDART relied on boilerplate and unsupported objections in refusing

to produce documents and provide complete discovery responses. This practice has been

rejected by the judges in this district, most notably in Heller v. City of Dallas, 303 F.R.D.

466 (N.D. Tex. 2014), and many cases following Heller. DART does not provide any

justification for its reliance on boilerplate objections, instead focusing on why DART

believed that it was not required to produce documents relating to Officer Branchs

disciplinary history. There are two problems with DARTs argument.

First, the parties conferred extensively on the issue of Officer Branchs disciplinary

history, with Adelmans counsel repeatedly telling DART that such information was

relevant under applicable law. Adelmans counsel also offered to take steps to protect the

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confidentiality of the information, including entry of a protective order or confidentiality

agreement. DART ultimately agreed that it was required to produce these documents and

accepted Adelmans offer of a confidentiality agreement. But DART waited until nearly

three weeks after Adelman filed his Motion to Compel (and expended significant attorney

time) to reach this decision. Under Rule 37, this is not substantial justification. See FED.

R. CIV. P. 37(a)(5)(A) (requiring award of attorneys fees where requested discovery is

provided after the motion was filed).

Second, even if DART is correct about the documents relating to Officer Branchs

disciplinary history, those documents comprised a very small portion of Adelmans

Motion to Compelapproximately 10% of the briefing, as explained in Adelmans

Motion for Attorneys Fees. Tellingly, DART continues to ignore the remaining discovery

requests that were addressed in Adelmans Motion to Compel, likely because DART has

no explanation for its failure to adequately answer those requests. Indeed, as explained in

Adelmans Motion for Attorneys Fees, DART (a) claimed an inability to answer requests

for admission without making a reasonably inquiry; (b) denied mutually exclusive

requests where the answer could not possibly have been deny for both requests; and (c)

repeatedly refused to answer requests for admission and interrogatories on the basis that

Adelman should have requested the information in a deposition. None of these types of

objections and denials are consistent with the rules, and each shows a lack of justification.

DARTs lack of justification in responding to discovery is further established by its

continued refusal to comply with the Courts May 4, 2017 Order. As set forth in

Adelmans Motion to Enforce the Order [Dkt. #28], DART continues to stand on

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objections and to provide evasive and non-responsive answers to discovery, despite a

Court Order requiring DART to respond. An award of attorneys fees under Rule 37 is

particularly appropriate, given that DART is continuing to flout its discovery obligations.

B. Adelmans requested fees in the amount of $5,070 are reasonable and necessary.

Adelman seeks $5,070 in attorneys fees, which is a reasonable and necessary

amount for the reasons set forth in Adelmans Motion for Attorneys Fees and the

supporting Affidavit. DART does not dispute the reasonableness of the hourly rate used

for the lodestar calculation. Instead, DART raises two objections to the number of hours

used for the lodestar calculation.

First, DART objects to the inclusion of 4.6 hours related to (a) the Notice of

Partial Resolution; and (b) the Motion for Attorneys Fees. Contrary to DARTs

objection, these are appropriately included in Adelmans request for attorneys fees. The

Notice of Partial Resolution was filed for the purpose of advising the Court of the

remaining issues to be determined and to request expedited consideration of the Motion

to Compel. This is no different than filing a reply brief or supplemental authority, which

is undisputedly related to the original motion. With regard to the time spent drafting the

Motion for Attorneys Fees, it is well established that such time is properly included in the

lodestar under Rule 37. See, e.g., SEC v. Kiselak Capital Grp., LLC, No. 4:09-CV-256-

A, 2012 WL 369450, at *8 (N.D. Tex. Feb. 3, 2012) (awarding to prevailing party on

motion to compel attorneys fees of $14,946.50, consisting of time spent researching and

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drafting the motion to compel discovery, the opposition to the motion to stay proceedings

and for protective order, and the request for attorney's fees (emphasis added)).1

Second, DART contends that the time records in the Affidavit in support of

Adelmans Motion for Attorneys Fees are insufficient. Contrary to DARTs arguments,

actual fee invoices are not required to support a request for attorneys fees, as long as the

evidence produced is adequate to determine reasonable hours. La. Power & Light Co.

v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995). Adelman submitted identical copies of

the information contained in his counsels fee invoices, but simply pasted the information

into an Affidavit. To the extent that DART is complaining about the format of this

information (i.e., that it is in an affidavit rather than an actual fee invoice), the Court

should reject DARTs argument. Nor is there any merit to DARTs suggestion that the

time entries lack sufficient detail. These entries state that Adelmans counsel was working

on the motion to compel, researching supporting case law, and working on the other

filings. DART cites no authority requiring more detail than Adelman has givenall that

is required is sufficient detail for the Court to evaluate the reasonableness of the time

entries, and Adelman has provided that information.

Notably, the only evidence before the Court on attorneys fees is the Affidavit

submitted by Adelmans counsel. DART has not submitted any contravening evidence,

and its objections are unfounded. Adelman respectfully requests that the Court grant his

1
The authority on which DART relies does not state that it is improper to include time related to drafting a
request for attorneys fees. Rather, Judge Horan merely noted that the tasks for which the movant was
seeking attorneys fees, which included only the time spent briefing the motion to compel. Richmond v. SW
Closeouts, Inc., No. 3:14-cv-4298-K, 2016 WL 4368305, at *4 (N.D. Tex. Aug. 16, 2016).

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Motion for Attorneys Fees and award to him the reasonable and necessary amount of

$5,070 pursuant to Rule 37.

Respectfully submitted,

REESE GORDON MARKETOS LLP

By: /s/ Tyler J. Bexley

Tyler J. Bexley
State Bar No. 24073923
750 N. Saint Paul St., Suite 600
Dallas, Texas 75201-3202
214.382.9810 telephone
214.501.0731 facsimile
tyler.bexley@rgmfirm.com

ATTORNEY FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned certifies that, on May 25, 2017, the foregoing document was
submitted to the clerk of the U.S. District Court, Northern District of Texas, using the
electronic case filing system (CM/ECF) of the court. I certify that the document was
served on all known counsel of record electronically as authorized by Federal Rule of
Civil Procedure 5(b)(2).

s/ Tyler J. Bexley