Schmitz et al v. Four D Trucking Inc et al

Filing 80

OPINION AND ORDER re 75 AFFIDAVIT of Attorney's Fees by Frances A Fields, Sharon A Schmitz. The Court AWARDS Plaintiffs $750 in attorney fees stemming from the Motion to Compel. Signed by Magistrate Judge Paul R Cherry on 7/13/2015. (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 Affidavit of Attorney Fees [DE 75], filed by Plaintiffs
on June 23, 2015. Defendant Halquist Stone Company, Inc. filed a response on June 30, 2015, and
Plaintiffs filed a reply on July 7, 2015.
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.
After subsequent briefing, the Court awarded Plaintiffs reasonable attorney fees incurred in
bringing the Motion to Compel. The Court directed Plaintiffs to file an affidavit of fees, which they
have now done, representing that their attorney worked a total of three hours on the motion and that
his billing rate is $250 per hour. This adds up to $750 in attorney fees.
Halquist objects to the time spent by Plaintiffs’ attorney reviewing the Court’s Opinion and
Order regarding the petition for fees and preparing the affidavit. It points out that the Court awarded
Plaintiffs fees incurred in bringing the Motion to Compel and in responding to Defendant’s

objections to an award of attorney fees. It argues that this does not extend to the recovery of costs
and fees incurred in bringing the affidavit of fees.
As explained in detail in the undersigned’s Opinion and Order in L.H.H. ex rel. Hernandez
v. Horton, one plausible reading of Federal Rule of Civil Procedure 37(a)(5)’s phrase “expenses
incurred in making the motion [to compel]” would exclude work done on subsequent rounds of
briefing. No. 2:13-CV-452-PRC, 2015 WL 1057466, at *4 (N.D. Ind. Mar. 10, 2015). This reading
has been rejected by the Seventh Circuit Court of Appeals, however, which has held that Rule
37(a)(5)’s fee-shifting provision applies equally to work done before and work done after a court’s
ruling on a motion to compel since doing otherwise would undermine the purpose of fee shifting,
namely, “that the victor should be . . . as well off as if the opponent had respected his legal rights
in the first place.” Rickels v. City of S. Bend, Ind., 33 F.3d 785, 787 (7th Cir. 1994); see also Tamari
v. Bache & Co. (Lebanon) S.A.L.,729 F.2d 469, 474 (7th Cir. 1984) (noting, in dicta, that “Rule
37(a) sanctions ‘should encompass all expenses, whenever incurred, that would not have been
sustained had the opponent conducted itself properly.’” (quoting Aerwey Labs., Inc. v. Arco
Polymers, Inc., 90 F.R.D. 563, 565–66 (N.D. Ill. 1981)).
As the undersigned explained in L.H.H., this is not inconsistent with the text.

There is some inherent ambiguity in the phrase “making the motion”
as used in Rule 37(a) since neither the phrase itself, nor the Rule
generally, says much about what tasks are part of making a motion
and which, though ancillary and related, are not. Here, context and
usage suggest that the language refers to more than just the work
done in putting together and filing the actual motion. Reading it
otherwise would exclude, not only fee petitions, but also a moving
party’s reply brief, which, after all, would be written after the motion
was made. This result borders on absurdity. Thus, the question is not
whether actions beyond the drafting and filing of the motion qualify
as part of “making the motion,” but rather which actions do.
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L.H.H., 2015 WL 1057466, at *5 (N.D. Ind. Mar. 10, 2015) (internal citations omitted).
The text of Rule 37(a)(5) contrasts with other provisions of Rule 37 that award the prevailing
party all fees “caused by” the losing party’s conduct. See Fed. R. Civ. P. 37(b), (c), (d), and (f). It’s
a bit of a linguistic stretch to say that “caused by” means the exact same thing as “incurred in
making the motion,” but this conclusion appears mandated by the reasoning of Rickels and Tamari.
See also Catapult Commc’ns Corp. v. Foster, No. 06 C 6112, 2009 WL 2707040, at *2 (N.D. Ill.
Aug. 25, 2009) (“[A]ttorneys’ fees incurred in bringing fee petitions are recoverable under Rule 37.”
(citing In re Stauffer Seeds, Inc., 817 F.2d 47, 50 (8th Cir. 1987)); but see Michigan Millers Mut.
Ins. Co. v. Westport Ins. Corp., No. 1:14-CV-151-PLM, 2014 WL 5810309, at *5 n. 5 (W.D. Mich.
Nov. 7, 2014) (ruling that attorney fees were not proper for work done on an affidavit of fees filed
after the underlying Rule 37 motion had been ruled on). Plaintiffs are therefore entitled to attorney
fees for the work their lawyer did in preparing the Affidavit of Fees currently before the Court.
Halquist also thinks that Plaintiffs’ attorney spent forty-eight minutes too many in preparing
the affidavit and in researching the “substantially justified” exception to the mandatory award of fees
under Rule 37(a). The half hour Plaintiffs’ attorney spent preparing the affidavit and one hour she
spent researching the Rule 37(a) are not excessive. The Court thus AWARDS Plaintiffs $750 in
attorney fees stemming from the Motion to Compel.
SO ORDERED 13th day of July, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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