United States District Court, N.D. Indiana, South Bend Division
AMENDED OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiff's Itemized Costs
and Fees [DE 68], filed on October 19, 2018. Defendants filed
a response on November 2, 2018, and on November 6, 2018,
Plaintiff filed a reply.
matter originates with a series of discovery-related motions,
including a Motion to Compel filed by Plaintiff, which was
granted in part by the Court on October 4, 2018 In that
Opinion and Order, the Court set deadlines for briefing on
the issue of awarding reasonable expenses. In the instant
Bill of Costs, Plaintiff requests attorney's fees in the
amount of $2, 000.00 for reasonable expenses related to the
Motion to Compel.
provides, in part, that “[i]f the motion is granted in
part and denied in part, the court . . . may, after giving an
opportunity to be heard, apportion the reasonable expenses
for the motion.” Fed.R.Civ.P. 37(a)(5)(C). In deciding
whether to apportion fees, courts consider the relative
degree of success of the party seeking fees and the degree to
which the objecting party's position was justified.
McGrath v. Everest National Ins. Co., 2:07 cv 34,
2008 WL 4261075, at *1 (N.D. Ind. Sept. 11, 2008). The Court
has “wide latitude” in determining awards of fees
under Rule 37. Johnson v. Kakvand, 192 F.3d 656, 661
(7th Cir. 1999).
requests fees in the amount of 8 hours at $250.00 per hour.
Defendants object to the fees requested, arguing that
Plaintiff failed to adequately confer with Defendants to
resolve the discovery issues prior to filing her motion, and
also argue that some of the particular charges are
inappropriate, including Plaintiff's filing of the
sur-reply without fist seeking leave of court.
initial matter, Defendants argue that Plaintiff never
properly served her discovery requests, only serving them by
email despite the fact that Defendants never agreed to accept
service by electronic means, and therefore Defendants were
not obliged to respond to any of Plaintiff's discovery
requests. However, Defendants did respond to a number of the
discovery requests without objection and did not alert
Plaintiff or the Court to their concerns prior to the close
of discovery in any of the numerous discovery-related
motions. It would be unjust to render all of Plaintiff's
discovery requests moot at this stage in the proceedings with
no chance for Plaintiff to correct the allegedly deficient
service, and the Court declines to address this argument
case, the Court noted that Plaintiff did not file a separate
Rule 37 certification with her motion to compel. Although it
did not deny the motion for failing to comply with Federal
Rule of Civil Procedure 37 and Local Rule 37-1, the Court did
note that the representations regarding the attempt to
conference with the other side were not fully satisfactory.
Review of the itemization indicates that 3.1 hours of
attorney time was spent reviewing discovery and reviewing
contact with opposing counsel. Since that was work that
should have been done before filing a motion to compel in
view of avoiding the need for Court intervention, that time
should not be compensated by Defendants. In addition,
Plaintiff seeks .4 hours of attorney time for preparing a
Rule 37 certification, which was docketed along with her
reply brief. Rule 37 requires that a motion “for an
order compelling disclosure or discovery . . . must
include a certification that the movant has in good
faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action.” Fed.R.Civ.P. 37(a)(1)
(emphasis added). Since the alleged certification did not
comply with the requirements of Federal Rule 37 or Local Rule
37-1, the time taken to prepare it will not be awarded.
Furthermore, as Defendants argue, Plaintiff did not seek
leave of Court to file a sur-reply, and the Court did not
address the new arguments contained therein. The 1.8 hours of
attorney time requested for this work will not be
also requests 1.2 hours for drafting the motion to compel and
1.5 hours for drafting the reply. Because the Motion was
granted in part, the Court concludes that payment for this
amount of time is appropriate. Plaintiff's requested rate
is $250 per hour, and Defendants do not dispute the
appropriateness of this hourly rate. The Court will use this
as the lodestar, and finds that an award of $675.00,
representing 2.7 hours at $250 per hour, is appropriate.
See Gisbrecht v. Barnhart, 535 U.S. 789, 801-02, 122
foregoing reasons, the Court hereby approves and
GRANTS in part the requested contained
within Plaintiff's Itemized Costs and Fees [DE 68], and
ORDERS Defendants and/or Defendants'
attorney to reimburse Plaintiff in the sum of
$675.00 in attorney fees within a reasonable time.
Court hereby GRANTS Plaintiff's Motion
of Correct Error of Order Dated January 9, 2019 [DE 85], as
See Fed. R. Civ. P.
37(a)(5)(A) (providing that the award should be paid by
“the party or deponent whose conduct necessitated the
motion, the party or attorney advising that conduct, or
both”); Francis v. AIT Labs., No.
1:07-CV-0626-RLY-JMS, 2008 WL 2561222, at *5 (S.D. Ind. June
26, 2008) (ordering the attorney to pay expenses where
“Plaintiff's counsel, rather than Plaintiff
himself, was responsible for the ...