United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on Non-Party Robert R. Foos,
Jr.'s Affidavit of Costs and Fees [DE 43], filed March
29, 2019. On March 22, 2019, the Court denied Defendant's
motion to compel and set a briefing schedule for the
attorney's fees incurred in filing the motion. The
instant affidavit requests $800.00 in attorney's fees
incurred in responding to the motion to compel and preparing
the affidavit. On April 22, 2019, Defendant responded to the
instant affidavit, arguing that an award of fees is
inappropriate. Foos has not filed a reply and the time to do
so has passed.
provides that, if a motion to compel is denied, the Court
“must, after giving an opportunity to be heard, require
the movant, the attorney filing the motion, or both to pay
the party or deponent who opposed the motion its reasonable
expenses incurred in opposing the motion, including
attorney's fees.” Fed.R.Civ.P. 37(a)(5)(B).
However, “the court must not order this payment if the
motion was substantially justified or other circumstances
make an award of expenses unjust.” Id.
District courts possess wide latitude in evaluating the
reasonableness of requested attorney fees and costs.
Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir.
argues that Foos should be compelled to turn over the
requested documents. However, she has not filed a motion for
reconsideration, nor does she identify any information or
argument that could not have been presented in the initial
motion. See, e.g, . Caisse Nationale de Credit Agricole
v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996)
(“Motions for reconsideration serve a limited function:
to correct manifest errors of law or fact or to present newly
discovered evidence.”) (quoting Keene Corp. v.
Int'l Fidelity Ins. Co., 561 F.Supp. 656, 665 (N.D.
Ill.1982)). Defendant now argues that the Court should
determine that Foos is actually a party to the lawsuit,
although she clearly identified him as a non-party in her
original Motion to Compel Response to Non-Party Request.
extent that Defendant is arguing that Foos's relationship
to Plaintiff made her initial motion substantially justified,
the argument that Foos should be considered a party could
have been made in the initial motion. Instead, as the Court
pointed out, Defendant identified Foos as a non-party and
sought to compel responses to a non-party request for
production, without identifying a subpoena that complied with
Rule 45. It does not appear to the Court that Defendant has
obtained any new information about the relationship between
Foos and Plaintiff that was not available at the time of the
original motion to compel that would now make the award of
expenses unjust. Defendant identified Foos as a non-party and
sought information from him thusly; the Court will not now
fail to award fees for his responding to the motion as a
non-party. As described in the Order denying the motion to
compel, Defendant still has avenues for obtaining the needed
discovery information, whether through properly issued
non-party subpoenas or through discovery requests made to
has not shown that the motion was substantially justified or
that an award of expenses would be unjust, so the Court now
turns to the reasonableness of the request. As the Supreme
Court has explained, “the most useful starting point
for court determination of the amount of a reasonable fee
payable by the loser is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate, ” known as the “lodestar.”
Gisbrecht v. Barnhart, 535 U.S. 789, 801-02 (2002)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)) (quotation and other marks omitted). Foos requests
attorney fees in the amount of $800, representing the time
that he himself spent responding to the motion to compel and
preparing the instant affidavit. However, since he is
representing himself, he is not entitled to attorney's
fees under Rule 37, Pickholtz v. Rainbow Techs.,
Inc., 284 F.3d 1365, 1375 (Fed. Cir. 2002); Cooper
v. Meyer, No. 16-CV-526-JDP, 2018 WL 1400956, at *3
(W.D. Wis. Mar. 19, 2018); Miller v. City of
Plymouth, No. 2:09-CV-205-JVB-PRC, 2011 WL 4601613, at
*4 (N.D. Ind. May 5, 2011), report and recommendation
adopted, No. 2:09-CV-205 JVB, 2011 WL 4625684 (N.D. Ind.
Sept. 30, 2011); Range v. Brubaker, No. 3:07-CV-480,
2008 WL 5249004, at *2 (N.D. Ind. Dec. 16, 2008), and he has
not requested reimbursement of any costs.
the Court DECLINES to award attorney's
fees as requested in Non-Party Robert R. Foos, ...