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Borom v. Menard, Inc.

United States District Court, N.D. Indiana, Hammond Division

December 10, 2014

NINA BOROM, Plaintiff,
MENARD, INC., Defendant.


PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on an Affidavit of Fees [DE 23], filed by Defendant Menard, Inc. on September 9, 2014, and Defendant's Motion to Strike [DE 29], filed on October 16, 2014.[1] Both motions became fully briefed on November 7, 2014.

I. Background

Plaintiff alleges that she was walking down a stopped escalator at one of Defendant's stores when one of Defendant's employees started it, causing it to jolt forward. As a result, Plaintiff alleges that she seriously injured her right knee. She filed this lawsuit against Defendant on December 23, 2013. This case is now in the discovery stage.

Earlier in this case, Plaintiff asked for Defendant to produce copies of surveillance videos of the alleged accident. Defendant initially objected that it did not need to turn over the video footage alleging it is attorney work product. After a renewed request, Defendant, after a number of delays, agreed to turn over the video footage on the condition that Plaintiff enter into a confidentiality agreement.

Plaintiff's counsel initially agreed, but after conferring with Plaintiff, he withdrew that agreement, demanding that the video footage be turned over without a confidentiality agreement. This dispute led to Defendant filing a Motion for Protective Order, which asked that the video footage be treated as confidential to protect the disclosure of blind spots to would-be thieves and those pursuing fraudulent lawsuits. Plaintiff, in turn, filed a Motion to Compel, which sought an order compelling production of the video footage without a protective order. The briefs for those two motions discussed attorney fees.

On August 26, 2014, this Court issued an Order granting the Motion for Protective Order, denying the Motion to Compel, and awarding Defendant costs and fees under Federal Rule of Civil Procedure 37(a). The Court ordered Defendant to submit an affidavit of fees, which it did on September 9, 2014. On September 23, 2014, Plaintiff filed a response. Defendant filed a reply on October 16, 2014, well after the deadline (October 3, 2014), but Plaintiff has not objected.

II. Analysis

As an initial matter, the Court notes that most of Plaintiff's response to the affidavit of fees is an improper attempt to re-litigate the attorney fees issues raised in the briefing for the Motion to Compel and the Motion for Protective Order. Federal Rule of Civil Procedure 37(a)(5) provides that "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 both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed.R.Civ.P. 37(a)(5)(A) (emphasis added). The objections Plaintiff now makes-especially her contention that defense counsel did not confer with Plaintiff's counsel prior to filing the Motion for Protective Order-are troubling. But she failed to raise these objections in litigating those motions. Her objections, insofar as they relate to whether an award of costs and fees is warranted (as opposed to objections regarding the amount of fees), come too late.

The Court need not strike these arguments under Federal Rule of Civil Procedure 12(f), however, as urged by Defendants. Doing so would go against the language of that rule, which authorizes courts to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter...." Fed.R.Civ.P. 12(f) (emphasis added). The rule says nothing about striking material from briefs or motions. And, at any rate, this Court's ruling regarding the propriety of Plaintiff's objections renders that motion moot.

Plaintiff also objects that Defendant overcharged for the work done in drafting its four-page response to Plaintiff's Motion to Compel. She contends that the response mirrors Defendant's Motion for Protective Order. As Defendant points out, however, Plaintiff-inexplicably-contends that Defendant is seeking more than $1, 300 in attorney fees for preparation of the response. In reality, the affidavit asks for $633. The response, though it did copy certain parts of Defendant's original motion, included a new section on why Plaintiff's Motion to Compel was procedurally improper and a section asking for costs and fees. The total amount asked for ($633) and the total hours billed (3.8 hours) are not unreasonable.

The only remaining dispute is about the propriety of three entries in defense counsel's affidavit of fees. Those entries are:

1. Review of the Court's Order ($105);
2. Preparation of legal analysis regarding the Court's ...

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