LAKEWATER K PERRY LLC v. KMART CORPORATION
Filing
29
Amended order on the motion to compel discovery. Signed by JUDGE ROBERT L HINKLE on 7/20/18. (RH)
Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
LAKEWATER K PERRY LLC,
Plaintiff,
v.
CASE NO. 4:18cv90-RH/CAS
KMART CORPORATION
Defendant.
________________________________/
AMENDED ORDER ON THE MOTION TO COMPEL DISCOVERY 1
The plaintiff moved to compel the defendant to produce documents and
respond to requests for admissions. The plaintiff withdrew the portion of the
motion directed to requests for admissions. After the plaintiff filed the motion, the
defendant began production of the requested documents. At a hearing on July 19,
2018, the plaintiff agreed that the ongoing production is satisfactory; the plaintiff
1
This amended order corrects a scrivener's error in the original order entered
on July 19, 2018. The plaintiff’s attorney brought the error to the attention of the
court’s staff. The original order said, in paragraph 2 on page 3, that the “defendant
must pay the defendant.” ECF No. 27 at 3. This order changes the second
“defendant” to “plaintiff” and italicizes the word. This amended order is identical
to the original except for the change of that one word, the addition of this footnote,
and the addition of the word “amended” to the title.
Case No. 4:18cv90-RH/CAS
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did not request an order compelling production. But the plaintiff did ask for a fee
award.
Federal Rule of Civil Procedure 37(a)(5)(A) applies when a motion to
compel is granted or a party provides discovery after a motion to compel is filed. A
party or attorney whose conduct necessitated the motion “must” be ordered to pay
the reasonable expenses incurred in making the motion, including attorney’s fees,
unless the moving party filed the motion before attempting in good faith to obtain
the discovery without court action, or the opposing party’s position was
“substantially justified,” or “other circumstances make an award of expenses
unjust.” Unless one of these conditions is met, an award of expenses is
“mandatory.” Devaney v. Cont’l Am. Ins. Co., 989 F.2d 1154, 1162 (11th Cir.
1993) (citing Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir.
Unit A June 1981)). A position is “substantially justified” if it results from a
“genuine dispute, or if reasonable people could differ as to the appropriateness of
the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations,
quotation marks, and brackets omitted); Devaney, 989 F.2d at 1163.
Under the circumstances of this case, an award is “mandatory,” and I would
make an award as a matter of discretion even if an award was not mandatory. To
avoid unnecessary expense in determining the amount of the fee award, this order
sets an amount, subject to redetermination.
Case No. 4:18cv90-RH/CAS
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For these reasons,
IT IS ORDERED:
1. The plaintiff’s motion to compel discovery, ECF No. 20, is denied as
moot.
2. The defendant must pay the plaintiff $500 as attorney’s fees. If a party
asserts that this is not the amount of fees reasonably incurred by the plaintiff on the
motion to compel, the party may move within 14 days to redetermine the amount,
and the matter will be reconsidered de novo. Attorney’s fees may be assessed
against the party who loses any such motion to redetermine. The fees assessed
under or based on this order must be paid by August 9, 2018 (if no motion to
redetermine is filed) or within 14 days after entry of an order on any motion to
redetermine.
SO ORDERED on July 20, 2018.
s/Robert L. Hinkle
United States District Judge
Case No. 4:18cv90-RH/CAS
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