Schmitz et al v. Four D Trucking Inc et al

Filing 74

OPINION AND ORDER: The Court ORDERS Dft Halquist to pay the reasonable attorney fees and costs incurred by Plas in filing the Motion to Compel, including the costs incurred in responding to Dft Halquist's objections. The Court ORDERS Plas to f ile an affidavit of fees no later than 6/23/2015. Dft Halquist may file a response (as to the amount of fees only) no later than 6/30/2015. If a response is filed, Plas may file a reply no later than 7/7/2015. Signed by Magistrate Judge Paul R Cherry on 6/16/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
SHARON A. SCHMITZ and
FRANCES A. FIELDS,
Plaintiffs,
v.
FOUR D TRUCKING, INC., et al.,
Defendants.

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Cause No.: 2:13-CV-214-RL-PRC

OPINION AND ORDER
This matter is before the Court on an Objection [DE 29] filed by Defendant Halquist Stone
Company, Inc. on April 24, 2015. Plaintiffs filed a response on May 8, 2015. Defendant Halquist
has not filed a reply, and the time to do so has passed.
This matter originates in a Motion to Compel filed by Plaintiffs on March 3, 2015. The
motion explained that Plaintiffs sent a notice of deposition to Defendant Halquist on January 20,
2015, and then attempted to contact defense counsel on at least three occasions, but without any
response. Defendant Halquist did not respond to the motion, and, on April 17, 2015, this Court
granted it, ordering Defendant Halquist to designate an appropriate person to testify on its behalf at
a deposition.
Federal Rule of Civil Procedure 37 provides that if a Motion to Compel is granted “the court
must, after giving opportunity to be heard, require the party . . . 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.” Fed. R. Civ. P. 37(a)(5)(A). The Rule
provides three exceptions: (i) if the motion was filed before the movant attempted in good faith to
get the discovery without court action; (ii) if “the opposing party’s non-disclosure, response, or
objection was substantially justified”; or (iii) if “other circumstances make an award of expenses

unjust.” Id. Since the matter was not discussed in the original motion, the Court ordered additional
briefing.
Defendant Halquist’s sole contention, unsupported by any authority aside from the Rule’s
text, is that it would be unjust to award fees because its failures did not prejudice Plaintiffs and
because it did not willfully withhold information. It contends that miscommunication within the
office of defense counsel resulted in information regarding the depostion not being forwarded to
Plaintiff’s attorneys or, later, being communicated to this Court.
Plaintiffs aren’t buying it. They contend that the failures to respond to the notice as well as
subsequent emails were deliberate. This is a troubling accusation, and Defendant Halquist’s
attorneys do nothing to refute it. But regardless of whether it is true (or not), attorney fees are
warranted. The vague assertion that an internal miscommunication is to blame is insufficient to
render the award of fees unjust. And, contrary to its contentions regarding prejudice, its conduct
(whether intentional or not) has hampered Plaintiffs’ ability to prosecute their case even if it has
probably not affected the ultimate outcome.
Accordingly, the Court ORDERS Defendant Halquist to pay the reasonable attorney fees
and costs incurred by Plaintiffs in filing the Motion to Compel, including the costs incurred in
responding to Defendant Halquist’s objections. See L.H.H. ex rel. Hernandez v. Horton, No.
2:13-CV-452-PRC, 2015 WL 1057466, at *3–*5 (N.D. Ind. Mar. 10, 2015) (“[T]he briefing on the
attorney fee issue is part of the work done in ‘making the motion.’” (quoting Fed. R. Civ. P.
37(a)(5)(A) and citing Rickels v. City of S. Bend, Ind., 33 F.3d 785, 787 (7th Cir. 1994))). The Court
ORDERS Plaintiffs to file an affidavit of fees no later than June 23, 2015. Defendant Halquist may
file a response (as to the amount of fees only) no later than June 30, 2015. If a response is filed,

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Plaintiffs may file a reply no later than July 7, 2015.
SO ORDERED this 16th day of June, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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