PARKER v. HUMPHRIES

Filing 108

ORDER setting aside that portion of the Magistrate Judge's 103 Order that denied defendant's request for attorney's fees and costs - Bill of Costs due by 9/23/11 - case is referred back to the Magistrate Judge; signed by SENIOR JUDGE MAURICE M PAUL on 9/6/11. (tss)

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JOHN EDWARD PARKER,
Plaintiff,
v.

CASE NO. 1:09-cv-00029-MP-GRJ

DEPARTMENT OF CORRECTIONS, DANIEL FOLSOM, FORTNER, M HUMPHRIES, C
JOHNSON, TERESA RICHARDSON, M SINGLETARY, MIKE SINGLETARY, EDWARD
WILDON, J YOUNG,
Defendants.
_____________________________/
ORDER
This matter is before the Court on Doc. 104, Objections to Discovery Order by Mike
Singletary. On July 7, 2011, defendant filed a motion to compel seeking an order requiring
plaintiff to answer deposition questions pertaining to the allegations of his complaint. Doc. 101.
This motion followed plaintiff’s refusal to answer most questions at his June 10, 2011
deposition. Defendant’s motion requested an award of expenses pertaining to the motion,
including attorney’s fees and costs, pursuant to Fed. R. Civ. P. 37(a)(5)(A). See Doc. 101 at 8.
The Magistrate Judge subsequently entered an order granting the motion to compel insofar as
requiring plaintiff to submit to a second deposition and to answer questions, but denying the
request for attorney’s fees and costs. Doc. 103 at 3-4. Pursuant to Fed. R. Civ. P. 72(a),
defendant timely objects to the portion of the Magistrate Judge’s order that denied defendant’s
request for attorney’s fees and costs. This Court must consider timely objections and modify or
set aside any part of the order that is clearly erroneous or is contrary to law. See Fed. R. Civ. P.
72(a).

Page 2 of 3

“A court must impose attorney’s fees and expenses when compelling discovery unless
the party was substantially justified in resisting discovery.” Maddow v. Proctor and Gamble
Company, Inc., 107 F. 3d 846, 853 (11th Cir. 1997). Substantially justified means that
reasonable people could differ as to the appropriateness of the contested action. See Pierce v.
Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 2550 (1988). In addition to substantial
justification, the Federal Rules of Civil Procedure specify two other situations that prevent such
an award: the moving party failed to make a good faith effort to obtain the discovery without
court intervention, and “other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(A).
In the instant case, there are no circumstances that would bar the imposition of attorney’s
fees and costs. First, the Magistrate Judge concluded that plaintiff’s “assertions of irrelevancy
and Fifth Amendment privilege and subsequent refusal to testify were improper and grounds for
this Court to grant Defendant’s motion to compel.” Doc. 103 at 2. Thus, plaintiff’s refusal to
answer defendant’s counsel’s relevant questions was not substantially justified. Second, the
deposition transcript is replete with defendant’s counsel’s warnings to plaintiff that he would
seek court intervention if plaintiff persisted in his refusals to answer relevant questions, and that
he considered plaintiff’s refusals unjustified. As such, the defendant made a good faith effort to
obtain answers to his deposition questions without court action. Finally, neither the Magistrate
Judge nor any party has identified any circumstances that would make an award of expenses
unjust. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The portion of the Magistrate Judge’s order, Doc. 103, that denied defendant’s
request for attorney’s fees and costs is set aside.

Case No: 1:09-cv-00029-MP-GRJ

Page 3 of 3

2.

Defendant’s request for an award of expenses pertaining to his motion to compel,
including attorney’s fees and costs, is GRANTED, pursuant to Fed. R. Civ. P.
37(a)(5)(A).

3.

Defendant is directed to submit a bill for all costs and attorney’s fees expended on
his motion to compel on or before September 23, 2011.

4.

This matter is referred back to the Magistrate Judge to determine the appropriate
amount of fees and costs to be awarded.

DONE AND ORDERED this

6th day of September, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:09-cv-00029-MP-GRJ