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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, Defendant. : : : : : : : : :
C.A.No.04-1394-GMS
PLAINTIFF'S MOTION TO ENFORCE THE COURT'S EARLIER ORDER (D.I. 217) AWARDING ATTORNEYS' FEES TO PLAINTIFF FOR DEFENDANTS' INTENTIONAL DESTRUCTION OF EVIDENCE. Plaintiff Moves to enforce the Court's earlier Order (D.I. 217) awarding plaintiff reasonable attorneys fees and expenses related to the prosecution of her motion to sanction defendants for the intentional destruction of evidence. On January 17, 2006, plaintiff filed a motion for sanctions and other relief related to defendants' intentional destruction of relevant evidence. (D.I. 141). On May 9, 2006, the Court issued a ruling addressing the destruction of evidence issue. In relevant part, the Order stated that The court awards the plaintiff her reasonable attorneys' fees and expenses for the prosecution of the motion for sanctions. (D.I. 217 at 3). On August 18, 2006, the undersigned counsel contacted defendants to address the fees and expenses that had been awarded by the Court. That e-mail and its attachments are attached to this motion at Tab A. The e-mail included a detailed breakdown of all time related to the sanctions motion and
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other related information, such as hourly rates. After the exercise of billing discretion, 39.8 hours were spent on the sanctions issue, for a total of $10,258 due to plaintiff. Almost two months have now passed and defendants have yet to respond to plaintiff's email and efforts to enforce the Court's earlier Order and collect on the fees awarded. Accordingly, plaintiff hereby respectfully requests that the Court order defendants to comply with the Court's earlier Order and issue a check to plaintiff in 20 days in the amount of $10,258.1 Additionally, plaintiff respectfully requests that the Court award fees and costs related to the prosecution of this motion to enforce. Plaintiff waives an opening brief in support of this Motion. Respectfully Submitted, THE NEUBERGER FIRM, P.A.
/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: October 12, 2006 Attorneys for Plaintiff
Although Chaffinch is the only defendant remaining in this action, at the time of the Court's earlier Order, the defendants in this case were Chaffinch, MacLeish, Mitchell and the Delaware State Police. Accordingly, the present motion is directed to all original defendants as all are presently in violation of the Court's earlier Order. 2
1
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LOCAL RULE 7.1.1 STATEMENT Counsel certifies that he contacted defense counsel on August 18, 2006 to resolve this matter short of petitioning the Court for relief. Almost two months have passed and defense counsel still have yet to respond.
/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.
3
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, Defendants. ORDER This day of
: : : : : : : : :
C.A.No.04-1394-GMS
, 2006, it is hereby ORDERED
that defendants Chaffinch, MacLeish, Mitchell and Delaware State Police shall comply with the Court's earlier Order (D.I. 217) and within 20 days of the date of this Order shall issue a check to plaintiff in the amount $10,258. The Court also awards the plaintiff her reasonable attorneys' fees and expenses related to the prosecution of the motion to enforce.
THE HONORABLE GREGORY M. SLEET, U.S.D.J.
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Tab A
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1 - [email protected]
From: To: Cc: Sent: Attach: Subject: Ralph, Following up on what appears to be the last trailing issue in Conley. On May 9, 2006, the court awarded plaintiff attorneys fees and costs incurred in prosecuting the motion for sanctions for destruction of evidence. (See D.I. 217). I have pulled together the time records related to this issue. After the exercise of billing discretion, a total of 39.8 hours were spent on the issue. The time spent on the similar motions in the firing range cases is not included in this total. Our hourly rates are as follows. Tom - $410/hour. Myself - $250/hour. Cheryl - $150/hour. State Solicitor Larry Lewis previously agreed to my and Tom's rates earlier this year in the Springer v. Henry case. Cheryl's rate also was previously stipulated to by the DSP in the firing range cases. The underlying time records are attached. The summary of the records demonstrates the following: Thomas S. Neuberger: 4.8 hours x $410/hour = $1,968 Stephen J. Neuberger: 30.4 hours x $250/hour = $7,600 Cheryl A. Hertzog: 4.6 hours x $150/hour = $690 The grand total of the fee award is then $10,258. Please let me know if you have any questions. -Steve ********************************** Stephen J. Neuberger, Esq. The Neuberger Firm Attorneys and Counsellors at Law Two East Seventh Street, Suite 302 Wilmington, DE 19801-3707 Phone: 302-655-0582 Fax: 302-655-9329 E-Mail: [email protected] "Stephen J. Neuberger"
10/4/2006
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Conley v. Chaffinch Spoliation Sanctions Time The Neuberger Firm Attorney SJN Date 12/9/05 Descriptions Legal research - spoliation of evidence issue arising from defendants' destruction fo Chaffinch's hard drive E-mail to Bar be: spoliation issue Call to Barb re: spoliation issue Legal research - spoliation of evidence Working on spoliation sanctions OB Working on spoliation sanctions OB Telephone call to law clerk to give blue booking assignment Working on spoliation sanctions OB Review, revise and discuss our draft spoliation of evidence brief E-mail to law clerk regarding bluebooking Gather documents for spoliation of evidence appendix Working on spoliation sanctions OB Compile document list and TOC for spoliation of evidence brief E-mail to defense counsel re: whether they will stipulate to a sanction for destruction of evidence or whether I have to file a motion Working on spoliation OB Edit law clerk's bluebooking for spoliation brief and scan/e-mail to SJN Working on spoliation OB Time Spent 1.2
SJN SJN SJN SJN SJN TSN SJN TSN CAH CAH SJN CAH SJN
12/9/05 12/9/05 12/20/05 1/9/06 1/10/06 1/11/06 1/11/06 1/12/06 1/12/06 1/12/06 1/12/06 1/13/06 1/13/06
.1 .2 2.1 3.5 3.8 .3 2.2 1.4 .1 .8 2.0 .5 .1
SJN CAH SJN
1/13/06 1/15/06 1/15/06
1.1 1.5 1.7
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CAH CAH
1/16/06 1/16/06
Finalize appendix for spoliation OB Finalize appendix citation, bluebooking, table of contents and table of authorities for Spoliation OB Finalize and then file SJ and Sanctions briefing and related docs Telephone with Barb re: filings Review defense answering brief on the sanctions issue Review and analyze D's sanctions AB Meeting with TSN re: sanctions briefing Meeting with SJN re: sanctions briefing Drafting spoliation sanctions RB Second draft of destruction of evidence reply brief E-mail from client on destruction of evidence issue Working on spoliation RB Revise and continue working on Sanctions RB Finalize our reply destruction of evidence brief
.9 .8
SJN SJN TSN SJN SJN TSN SJN TSN TSN SJN SJN TSN
1/17/06 1/17/06 2/1/06 2/1/06 2/2/06 2/2/06 2/2/06 2/2/06 2/3/06 2/3/06 2/6/06 2/6/06
2.0 .1 1.5 1.4 .3 .3 6.3 .5 .1 1.5 .8 .7
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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on October 12, 2006, I electronically filed this Motion with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:
Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901
/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.
cc:
Captain Barbara L. Conley
C onley/ Pleadings / M otion to Enforce.final
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