Weaver v. Stringer et al

Filing 82

ORDER granting in part and denying in part 58 Motion for Attorney Fees, and 71 the Corrected Motion for Attorney Fees is DENIED, such that the law firm Capell & Howard PC is ORDERED to pay $7,265.70 to plaintiff. Capell & Howard is ORDERED to make this payment in full by 14 days from date of entry of this order, unless plaintiff agrees to a different arrangement. Signed by Magistrate Judge Katherine P. Nelson on 4/4/19. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SIERRA D. WEAVER,
as Administratrix for the Estate of
Tracie P. Weaver,
Plaintiff,
v.
RICHARD STRINGER, Sheriff of
Washington County, et al.,
Defendants.

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CIVIL ACTION NO. 1:18-00052-N

ORDER
This action is before the Court on the Plaintiff’s motion for reasonable
expenses under Federal Rule of Civil Procedure 37(a)(5).

(Doc. 58).

The

Defendants have timely filed a response (Doc. 65) in opposition to the motion, and
the Plaintiff has timely filed a reply (Doc. 66).

The Plaintiff subsequently filed a

corrected supplemental motion for expenses under Rule 37(a)(5) (Doc. 71), to which
the Defendants filed no response.1 The Plaintiff has also submitted a notice of
additional authority under S.D. Ala CivLR 7(f)(3) (Doc. 81).2

The Court did not set an additional briefing schedule on the corrected
supplemental motion, and the Defendants did not file a response within the default
period to do so set by the local rules. See S.D. Ala. CivLR 7(c) (“Unless the Court
orders otherwise, the nonmovant must file any brief, exhibit, or other paper in
opposition to a motion, except a motion under Fed. R. Civ. P. 56, within fourteen (14)
days of service of the motion.”).
1

With the consent of the parties, this action has been referred to the undersigned
Magistrate Judge to conduct all proceedings in this action, including trial; to order
entry of final judgment; and to conduct all post-judgment proceedings, in accordance
with 28 U.S.C. § 636(c), Rule 73, and S.D. Ala. GenLR 73. (See Docs. 11, 13).
2

I.

Background

On September 27, 2018, the Plaintiff file a renewed motion to compel
disclosures and discovery responses from the Defendants under Federal Rule of Civil
Procedure 37(a). (Doc. 39). Following briefing (Docs. 42, 43, 45), the Court set a
hearing on the motion, which was continued several times. (See Docs. 46, 47, 51,
52). In the meantime, the Plaintiff filed three additional motions to compel (Docs.
48, 53, 54), with the Defendants responding to one (see Doc. 50).

A hearing

addressing all motions to compel was held with counsel for the parties on November
30, 2018. On December 11, 2018, the Court entered an order granting the motions
to compel in part, finding that the Plaintiff was entitled to relief on certain issues,
and otherwise mooting the motions due to supplemental discovery responses served
by the Defendants after the motions to compel were filed. (See Doc. 60). On the
Plaintiff’s motion, an amended version of that order was entered December 18, 2018,
granting additional relief.

(See Docs. 62, 63, 64).

The Plaintiff now seeks an

award of reasonable expenses under Rule 37(a)(5) in connection with the motions to
compel.
II.

Analysis

If a Rule 37(a) motion to compel “is granted--or if the disclosure or requested
discovery is provided after the motion was filed--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. But

the court must not order this payment if: (i) the movant filed the motion before
attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially
justified; or (iii) other circumstances make an award of expenses unjust.”

Fed. R.

Civ. P. 37(a)(5)(A). The Plaintiff’s initial motion seeks an award of $8,186.80 in
reasonable expenses under Rule 37(a)(5), consisting of $8,140 in attorney fees and
$46.80 in copy fees.

Her corrected supplemental motion seeks an additional

$2,559.50 in attorney and copy fees expended litigating the initial motion for Rule
37(a)(5) expenses.
The Defendants first argue that the Plaintiff should not be awarded any
expenses because their objections to the Plaintiff’s “vague, unduly burdensome, and
overbroad interrogatories” discovery requests were substantially justified.3 (Doc.
65 at 2 – 4). However, the Defendants did not substantively argue those objections
in any of their briefing submitted in response to the Plaintiff’s motions to compel
(Docs. 42, 45, 50), instead repeatedly and conclusorily asserting that they had
produced all information known to them.4 “If objections are made, the burden is on

“[A]n individual’s discovery conduct should be found ‘substantially justified’ under
Rule 37 if it is a response to a ‘genuine dispute, or if reasonable people could differ as
to the appropriateness of the contested action.’ ” Devaney v. Cont'l Am. Ins. Co., 989
F.2d 1154, 1163 (11th Cir. 1993) (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citations omitted)).
3

The Defendants assert that the Plaintiff improperly “moved to compel Defendants
to respond” to her discovery requests “[i]nstead of asking the Court to rule on [the
Defendants’] objections.” (Doc. 50 at 1. See also Doc. 65 at 5 (“Plaintiff’s counsel
did not seek to obtain a ruling on the Defendants’ objections, but instead sought
entire supplemental answers from the Defendants.”). However, since 1970, a Rule
37(a) motion to compel has been the proper vehicle for resolving objections to
4

the interrogating party to move under Rule 37(a) for a court order compelling
answers[;]” however, that “does not alter the…obligation of an objecting party to
justify his objections.”
amendment.

Fed. R. Civ. P. 33(a) advisory committee’s note to 1970

See also Fed. R. Civ. P. 34(b) advisory committee’s note to 1970

amendment (“The procedure provided in Rule 34 is essentially the same as that in
Rule 33, as amended, and the discussion in the note appended to that rule is
relevant to Rule 34 as well.”). Indeed, it was not until the hearing on the Plaintiff’s
motions to compel that the Defendants attempted to justify their objections.
However, the entire purpose of Rule 37(a)’s sanctions provisions are “to deter a party
from pressing to a court hearing frivolous requests for or objections to discovery.”
Fed. R. Civ. P. 37(a) advisory committee’s note to 1970 amendment. See also id.
interrogatories under Federal Rule of Civil Procedure 33 and requests for production
under Federal Rule of Civil Procedure 34. See Fed. R. Civ. P. 33(a) advisory
committee’s note to 1970 amendment (“If objections are made, the burden is on the
interrogating party to move under Rule 37(a) for a court order compelling answers,
in the course of which the court will pass on the objections.”); Pan-Islamic Trade
Corp. v. Exxon Corp., 632 F.2d 539, 552 (5th Cir. 1980) (“An objection to an
interrogatory is not passed on by a court unless a motion to compel under Rule 37(a)
is made.”), abrogated on other grounds by Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 536 n.33 (1983); Fed. R. Civ. P. 34(b)
advisory committee’s note to 1970 amendment (“The procedure provided in Rule 34
is essentially the same as that in Rule 33, as amended, and the discussion in the
note appended to that rule is relevant to Rule 34 as well.”); Fed. R. Civ. P. 37(a)
advisory committee’s note to 1970 amendment (“Rule 37(a) provides relief to a party
seeking discovery against one who, with or without stated objections, fails to afford
the discovery sought. It has always fully served this function in relation to
depositions, but the amendments being made to Rules 33 and 34 give Rule 37(a)
added scope and importance. Under existing Rule 33, a party objecting to
interrogatories must make a motion for court hearing on his objections. The
changes now made in Rule 33 and 37(a) make it clear that the interrogating party
must move to compel answers, and the motion is provided for in Rule
37(a)…Amendments of Rules 34 and 37(a) create a procedure similar to that
provided for Rule 33.”).

(“The proposed change provides in effect that expenses should ordinarily be awarded
unless a court finds that the losing party acted justifiably in carrying his point to
court.”). Because the Defendants did not rely on their objections in resisting the
Plaintiff’s motions to compel until the Court found it necessary to call a hearing,
they should not now be allowed to rely on those same objections to claim that their
position with regard to those motions was substantially justified.

Regardless,

having given thorough consideration to the parties’ briefing and the arguments
made at the motions hearing, the Court finds that the Defendants’ position in
opposing the motions was not substantially justified.
The Defendants also argue that the Plaintiff’s motion for expenses should be
denied because “the Plaintiff never attempted to dispute or work through the
Defendant’s objections without court assistance…”

(Doc. 65 at 4). However, the

Plaintiff’s three subject motions to compel, when considered together, 5 contain
sufficient allegations indicating that the Plaintiff “attempt[ed] in good faith to obtain
the disclosure or discovery without court action[.]”

Fed. R. Civ. P. 37(a)(5)(A)(i).

The Defendants never argued otherwise in opposing the motions to compel (despite a
good-faith conferencing certification being a requisite to any motion to compel under
both Rule 37(a)(1) and the Court’s scheduling order (Doc. 18, as modified by Docs. 37,
75)), and nothing in their response to the present motion refutes the Plaintiff’s
representations of good-faith conferencing attempts.

Because the three subject motions to compel were filed at different stages of what
was essentially the same overall discovery dispute, the Court considers them
together on this issue.
5

The Defendants also claim that the following “other circumstances” would
“make an award of expenses unjust”: “the Defendants acted in good faith and
dutifully attempted to work with Plaintiff’s counsel to insure amicable discovery was
completed;” “Plaintiff’s counsel previously and unsuccessfully filed a previous motion
to compel;” “Plaintiff’s counsel’s issue with discovery was a matter of form over
substance;” and “the Plaintiff has not been prejudiced in any manner by the delay.”
(Doc. 65 at 4). The Court disagrees.
The Defendants’ claim that the Plaintiff has not been prejudiced by any delay
caused by their deficient responses is doubtful.

Regardless, in making this

argument, the Defendants diminish the primary purpose of Rule 37(a)(5)’s
fee-shifting provisions, which is to minimize courts becoming involved in the
discovery process and encourage all parties to be as forthcoming as possible during
the discovery process. See 8B The Late Charles Alan Wright, et al., Fed. Prac. &
Proc. Civ. § 2288 (3d ed.) (“A major purpose of the 1970 revision of the discovery
rules was to encourage extrajudicial discovery with a minimum of court
intervention. One means of accomplishing that was to tighten the judicial sanctions
with respect to unjustified insistence upon or objection to discovery.” (footnote
omitted)); Fed. R. Civ. P. 37(a) advisory committee’s note to 1970 amendment (“the
potential or actual imposition of expenses is virtually the sole formal sanction in the
rules to deter a party from pressing to a court hearing frivolous requests for or
objections to discovery” and is “the most important available sanction to deter
abusive resort to the judiciary”). Cf. McCarthy v. Ameritech Pub., Inc., 763 F.3d 488,

494 (6th Cir. 2014) (“an ‘important purpose’ of the expense-shifting sanction codified
in Rule 37(c)(2) is to establish incentives for litigants ‘to respond reasonably and in
good faith to appropriate requests for admissions’ ” (quoting 7 Moore's Federal
Practice § 37.70 (3d ed. 2013)). “Prejudice to the merits of the party’s cause is not
required” to be entitled to Rule 37(a)(5) expenses.

Cal Dive Int'l, Inc. v. M/V

Tzimin (ex Stena Seahorse), 127 F.R.D. 213, 217 (S.D. Ala. 1989). Indeed, forcing
parties to resort to the courts to resolve discovery disputes, and forcing courts to do
so, are their own “prejudices” that Rule 37(a)(5) sought to deter. Similarly, the
Defendants’ assertions that they “acted in good faith” in attempting to resolve the
discovery disputes does not absolve them from liability under Rule 37(a)(5).

See

Marquis v. Chrysler Corp., 577 F.2d 624, 642 (9th Cir. 1978) (“Although the failure to
produce may not have been in bad faith, the presence or absence of bad faith is
relevant to the choice of sanctions rather than to the question whether a sanction
should have been imposed. In view of the range of sanctions available, even
negligent failures to allow reasonable discovery may be punished.”); Tamari v. Bache
& Co. (Lebanon) S.A.L., 729 F.2d 469, 473–74 (7th Cir. 1984) (“The Firm next
contends that a court may not impose Rule 37(b) sanctions on a party unless that
party violates a court order because of wilfullness, bad faith, or fault. The weight of
authority, however, holds that the culpability of a party who fails to comply with a
court order determines only which sanctions the court should impose and not
whether any sanctions are appropriate at all. Courts thus have held that negligent
failure to follow discovery proceedings may trigger sanctions.” (citations omitted)).

With regard to the Plaintiff’s first motion to compel, which was denied
without prejudice 4 days after it was filed for failure to include an adequate
good-faith conferencing certification (see Docs. 21, 22), the Defendants complain
that, because the Court did not award them reasonable expenses under Rule
37(a)(5)(B) in connection with the denial,6 it would be unjust to now award the
Plaintiff reasonable expenses here.

However, the Defendants have never moved for

such an award, and nothing in the Court’s order denying the first motion compel
precluded them from doing so. At most, this could entitle the Defendants to an
off-set on the expenses that will be awarded to the Plaintiff here, but the Defendants
have presented no evidence indicating what “reasonable expenses” they incurred in
opposing the first motion, instead only vaguely suggesting that they might have
incurred “time and expense by preparing to oppose the Plaintiff’s motion.”

(Doc. 65

at 6). Moreover, it is doubtful that the Defendants incurred significant expenses as
a result of the motion, given that it involved only two discrete issues regarding the
sufficiency of the Defendants’ initial disclosures under Federal Rule of Civil
Procedure 26(a)(1), and was denied by the Court sua sponte only four days after
being filed. (See Doc. 21).

If a Rule 37(a) motion to compel “is denied, the court may issue any protective
order authorized under Rule 26(c) and 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. But the court must not order this payment if the
motion was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B).
6

The Defendants’ assertion that the Plaintiff’s complaints about their discovery
responses was “a matter of the form of the answers rather than the substance of the
Defendants’ answers” is unconvincing.

The Defendants claim that, because the

additional discovery they were compelled by the Court to produce “did not provide
new information or discovery to the Plaintiff[, and] since the Plaintiff’s [sic] already
possessed all information necessary to answer the Plaintiff’s interrogatories[,]” the
Plaintiff should not be awarded reasonable expenses. (Doc. 65 at 6). However, as
the Defendants’ counsel was informed at the hearing, a “document dump” does not
satisfy a party’s obligation to provide clear responses to discovery requests, and it
was not the Plaintiff’s responsibility to piece together the Defendants’ interrogatory
responses for them. See Fed. R. Civ. P. 37(a)(4) (“For purposes of this subdivision
(a), an evasive or incomplete disclosure, answer, or response must be treated as a
failure to disclose, answer, or respond.”).

Moreover, what a discovery response does

not say can be just as important as what it does. See Fed. R. Civ. P. 33(b)(3) (“Each
interrogatory must, to the extent it is not objected to, be answered separately and
fully in writing under oath.” (emphasis added)); Fed. R. Civ. P. 26(g)(1) (by signing a
Rule 26(a)(1) disclosure or a discovery response, the signatory “certifies that to the
best of the person’s knowledge, information, and belief formed after a reasonable
inquiry[,]” the disclosure “is complete and correct as of the time it is made[,]” and
the discovery response is, inter alia, “consistent with these rules…” (emphasis
added)).

The Defendants also claim that the Plaintiff was “only forty-five percent
successful” on the relief requested in her motions to compel, and that therefore she
should only be awarded a similar proportion in reasonable expenses. (Doc. 65 at 9).
The Court disagrees, as it did not deny any of the Plaintiff’s requested relief in its
order ruling on the motions; rather, the motions were “GRANTED in part and
[found] MOOT in part,” with the moot issues being “due to the Defendants’
production of responsive material after the motions were filed.”

(Doc. 64). Rule

37(a)(5)(A) mandates an award of reasonable expenses if a motion to compel “is
granted[]or if the disclosure or requested discovery is provided after the motion was
filed…” (emphasis added).7
Finally, the Defendants challenge the reasonableness of various time entries
and other expenses billed by Plaintiff’s counsel, Henry Brewster, Esq., and S. Joshua
Briskman, Esq. (See Doc. 65 at 9 – 13 [Section IV of “Argument,” Defendants’
Response Brief])). 8

Initially, the Court finds that the Plaintiff’s corrected

The district cases to which the Defendants cite in support of this argument are not
analogous, as they involved discovery motions that were granted in part and denied
in part. In such circumstances, the court “may…apportion the reasonable expenses
for the motion.” Fed. R. Civ. P. 37(a)(5)(C).
7

The Defendants do not challenge the hourly billing rates requested for Plaintiff’s
counsel - $350 for Brewster and $300 for Briskman. As indicated in the Plaintiff’s
notice of additional authority, another judge of this Court recently approved an
hourly rate of $350 for Brewster in awarding Brewster’s client attorney fees in
another case. (See Doc. 81). Moreover, considering counsel’s affidavit evidence
together with the undersigned’s own knowledge and experience, see Norman v.
Housing Authority of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (“[A] court is
itself an expert on the question [of a reasonable hourly rate] and may consider its
own knowledge and experience concerning reasonable and proper fees and may form
an independent judgment either with or without the aid of witnesses as to value.”),
8

supplemental motion (Doc. 71), seeking expenses incurred in bringing the initial
Rule 37(a)(5) motion and in replying to the Defendants’ response (sometimes called
“fee-defense litigation,” or “fees for fees”), is due to be DENIED. Contrary to the
Plaintiff’s assertion, it is not clear that “[t]ime spent litigating a fee award under
Fed. R. Civ. P. 37(a)(5)(A) is presumably reimbursable as a reasonable expense
arising out of the motion to compel…” (Doc. 71 at 2).9 The plain terms of Rule
37(a)(5)(A) allow for reasonable expenses “incurred in making the motion [to
compel]…”

Since a Court must grant or find moot a motion to compel prior to

awarding expenses under Rule 37(a)(5)(A), litigation over those expenses would not
appear to be incurred in making the motion to compel.

The Plaintiff cites no

persuasive authority indicating otherwise.10

the undersigned finds Brewster and Briskman’s billing rates to be appropriate here.
See id. (“A reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.”).
The Court’s “basic point of reference when considering the award of attorney's fees
is the bedrock principle known as the American Rule: Each litigant pays his own
attorney's fees, win or lose, unless a statute or contract provides otherwise. The
American Rule has roots in our common law reaching back to at least the 18th
century, and statutes which invade the common law are to be read with a
presumption favoring the retention of long-established and familiar legal principles.
[Courts] consequently will not deviate from the American Rule absent explicit
statutory authority. [The Supreme Court] ha[s] recognized departures from the
American Rule only in specific and explicit provisions for the allowance of attorneys'
fees under selected statutes.” Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158,
2164 (2015) (citations and quotations omitted).
9

The Plaintiff has cited authority holding “that an attorney may recover fees
for time spent litigating the award of a [42 U.S.C. §]1988 fee.” Thompson v.
Pharmacy Corp. of Am., 334 F.3d 1242, 1245 (11th Cir. 2003) (per curiam) (citing
Villano v. City of Boynton Beach, 254 F.3d 1302, 1309 (11th Cir. 2001), and Johnson
v. Mississippi, 606 F.2d 635, 638 (5th Cir. 1979)). However, the attorney fee
10

As for the expenses requested in the Plaintiff’s initial motion (Doc. 58),
Brewster billed a total of 18.2 hours and $46.80 in copy fees ($0.10 per page)11 in

provision of § 1988 is much more open-ended than that of Rule 37(a)(5). See 42
U.S.C. § 1988(b) (“[T]he court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of the costs” in certain
actions, subject to certain exceptions.). Also cf. Commissioner v. Jean, 496 U.S. 154
(1990) (holding that the attorney’s fees provision of the Equal Access to Justice Act,
28 U.S.C. § 2412(d)(1)(A), which that “a court shall award to a prevailing party other
than the United States fees and other expenses ... incurred by that party in any civil
action (other than cases sounding in tort) ... brought by or against the United States”
under certain conditions, allowed “fees for fees”).
Moreover, whatever persuasive value that authority might once have had on
the issue of allowing fees for fee-defense litigation under Rule 37(a)(5) has been
diminished in light of the Supreme Court’s more recent admonition in Baker Botts
that courts “should not deviate from the American Rule absent explicit statutory
authority.” 135 S. Ct. at 2164. In that case, for instance, the Court held that 11
U.S.C. § 330(a)(1), which states that a bankruptcy court “may award ... reasonable
compensation for actual, necessary services rendered by” professionals hired by
bankruptcy trustees to assist them in their statutory duties, “cannot displace the
American Rule with respect to fee-defense litigation” because fee-defense litigation
was not a “necessary service” for the trustee. Id. at 2165. Similarly, it is not clear
that fees for fee-defense litigation are “incurred in making the motion” to compel.
But see McCarthy v. Ameritech Pub., Inc., 763 F.3d 488, 494 (6th Cir. 2014) (“To
harmonize Rule 37(c)(2) with other Rule 37 provisions serving a substantially
similar purpose, we interpret the scope of Rule 37(c)(2) to encompass reasonable
attorney's fees and costs associated with the preparation and presentation of the fee
application.”), and In re Stauffer Seeds, Inc., 817 F.2d 47, 50 (8th Cir. 1987) (“The
magistrate’s scrutiny on remand should extend also to hours reasonably spent by
Booker’s local counsel in seeking the discovery sanctions. See Poulis v. State Farm
Fire & Casualty Co., 747 F.2d 863, 869 (3d Cir.1984). Rule 37, interpreted consistent
with its purposes, authorizes an award encompassing ‘all expenses, whenever
incurred, that would not have been sustained had the opponent conducted itself
properly.’ Aerwey Laboratories v. Arco Polymers, 90 F.R.D. 563, 565–66
(N.D.Ill.1981), cited in Tamari v. Bache & Co., 729 F.2d 469, 475 (7th Cir.1984)
(allowing fees and expenses incurred in defending award of sanctions on appeal).
Absent the discovery abuses, Booker would not have incurred the expense of the
sanctions motion, and failure to allow him this expense would undermine the Rule's
operation because Booker's award would be offset by his cost in seeking it and he
would not be fully reimbursed for the extra work caused by the discovery abuse.”).
11

The Defendants do not challenge the copy billing rate, and the undersigned finds

connection with the subject motions to compel, while Briskman billed 5.9 hours.
(See Docs. 58-1, 58-2).

The undersigned agrees with the Defendants that they

should not have to pay for expenses incurred by Plaintiff’s counsel in bringing the
Plaintiff’s first motion to compel on May 18, 2018, which was denied on May 22,
2018, for failure to include an adequate good-faith conferencing certification, see
supra. Even if the Plaintiff had obtained relief under that motion, she would still
not have been entitled to Rule 37(a)(5)(A) expenses for bringing it. See Fed. R. Civ.
P. 37(a)(5)(A)(i) (“the court must not order…payment if…the movant filed the motion
before attempting in good faith to obtain the disclosure or discovery without court
action…”). Accordingly, the Court will deny all expenses billed on or before May 22,
2019, totaling 0.95 hours billed by Briskman, and 1.8 hours and $6.10 in copy
expenses billed by Brewster.
However, the Court overrules the Defendants’ other objections and finds that
the remaining expenses billed by Brewster and Briskman – 4.95 hours at $300/hour
($1,485.00) by Briskman, and $40.70 in copy expenses and 16.4 hours at $350/hour
by Brewster ($5,740.00), for a total of $7,265.70 – were “incurred in making the
[subject] motion[s]” to compel and are “reasonable.”

Moreover, the undersigned

finds that the conduct necessitating the filing of the motions to compel is
attributable solely to the Defendants’ counsel of record; therefore, only the
Defendants’ counsel will be ordered to pay the reasonable expenses awarded herein.

it reasonable.

III.

Conclusion

Accordingly, the Plaintiff’s motion for reasonable expenses under Federal
Rule of Civil Procedure 37(a)(5) (Doc. 58) is GRANTED in part and DENIED in
part, and the Plaintiff’s corrected supplemental motion for expenses under Rule
37(a)(5) (Doc. 71) is DENIED,12 such that the law firm Capell & Howard, P.C., is
ORDERED to pay $7,265.70 to the Plaintiff. Capell & Howard is ORDERED to
make this payment in full no later than fourteen (14) days from the date of entry of
this order, unless the Plaintiff agrees to a different arrangement.
DONE and ORDERED this the 4th day of April 2019.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

In light of the superseding corrected version, the initial supplemental motion (Doc.
70) is MOOT.
12