Wright v. Lake County IN et al

Filing 107

OPINION AND ORDER: DENYING 86 AFFIDAVIT in Support re 68 MOTION to Compel Discovery from Defendants, John Buncich and Dr. William Forgey with Itemization of Cost and Fees Pursuant to the Court's Order of February 19, 2016 filed by Cedell Wrigh t; 87 MOTION re 83 Order on Motion to Compel Itemization of Cost and Fees, Including Attorney's Fees, for Defense of Plaintiff's Motion to Compel Discovery and Argument in Support by Defendant John Buncich; and 96 MOTION for Bill of Costs and Fees, Including Attorney's Fees by Defendant Dr William Forgey. Signed by Magistrate Judge John E Martin on 5/23/2016. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ESTATE OF CEDELL WRIGHT,
Plaintiff,
v.
DR. WILLIAM FORGEY, et al.,
Defendant.

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CAUSE NO.: 2:13-CV-333-WCL-JEM

OPINION AND ORDER
This matter is before the Court on an Itemization of Cost and Fees, Including Attorney’s Fees
for Preparation of Motion to Compel Discovery from Defendants John Buncich and William Forgey
[DE 86], filed by Plaintiff on March 7, 20016; Defendant John Buncich, Individually and in His
Official Capacity as Lake County Sheriff, Itemization of Costs and Fees, Including Attorney’s Fees
for Defense of Plaintiff’s Motion to Compel [DE 87], filed by Defendant John Buncich on March
15, 2016; and an Itemization of Costs and Fees, Including Attorney’s Fees, for Defending Motion
to Compel Discovery from Defendants John Buncich and Dr. William Forgey [DE 96], filed by
Defendant Dr. William Forgey on March 23, 2016. In the instant Motions, Plaintiff, Defendant
Buncich, and Defendant Forgey request that the Court award them fees and costs incurred in
connection with Plaintiff’s Motion to Compel Discovery from Defendants, John Buncich and Dr.
William Forgey [DE 68], which was granted in part and denied in part.
I.

Procedural Background
This case stems from Plaintiff’s allegation that Defendants Buncich and Forgey are liable

to Plaintiff under 42 U.S.C.§ 1983 for violating Cedell Wright’s Eighth and Fourteenth Amendment
rights by showing deliberate indifference to Mr. Wright’s medical needs and failing to provide
necessary medical care while he was an inmate at Lake County Jail. On September 20, 2013,

Plaintiff filed his Complaint seeking compensatory and punitive damages and attorney’s fees and
costs.
Discovery in this case has been contentious. Plaintiff has filed three motions to compel, two
against Defendant Buncich, all of which were granted at least in part. In addition, Plaintiff filed a
motion for sanctions against Defendant Buncich for his repeated failure to properly respond to
Plaintiff’s discovery requests, which the Court granted. Indeed, the Court has ordered Defendant
Buncich to pay Plaintiff over $3,000 in associated fees, costs, and sanctions.
Plaintiff has represented throughout this case that its claims can not properly proceed
because Defendants Buncich and Forgey have frustrated discovery. Specifically, Plaintiff has
represented that Defendants Buncich and Forgey object to its requests for information related to their
financial net worth on the grounds that they are raising a defense of qualified immunity, only to
never actually bring the issue of qualified immunity before the Court.
On November 12, 2015, Plaintiff filed a Motion to Compel Discovery from Defendants, John
Buncich and Dr. William Forgey [DE 68], requesting discovery related to Defendant Buncich’s and
Defendant Forgey’s financial net worth. In the alternative, Plaintiff requested that if financial
discovery was not forthcoming, the Court set a briefing schedule for a motion on the issue of
qualified immunity so the case could advance. Defendants Buncich and Forgey opposed the motion
to compel, arguing that their assertion of qualified immunity precluded discovery related to their
financial net worth until the issue of qualified immunity was resolved by the Court.
The Court granted in part and denied in part Plaintiff’s motion to compel. The Court denied
Plaintiff’s request for discovery related to Defendant Buncich’s and Forgery’s financial net worth,
finding that financial discovery should not proceed until their claim of qualified immunity was

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resolved. The Court granted Plaintiff’s alternative request that a briefing schedule be set on the issue
of qualified immunity in order for the case to proceed. Because the motion to compel was granted
in part and denied in part, the Court directed the parties to individually file an itemization of their
costs and fees, including attorney’s fees, incurred in making or defending the motion compel, along
with argument as to how the expenses should be apportioned pursuant to Federal Rule of Civil
Procedure 37(a)(5)(C).
II.

Analysis
In the instant Motions, Plaintiff requests an award of $5635.00 in attorney’s fees and costs

incurred in making the motion to compel, or alternatively, that each party bear their own costs and
fees in making or defending the motion to compel. Defendant Buncich requests $9082.00 in
attorney’s fees and costs, as a prevailing party, incurred in defending the motion to compel.
Defendant Forgey requests $4,500.00 in attorney’s fees and costs, as a prevailing party, incurred in
defending the motion to compel.
Federal Rule of Civil Procedure 37(a)(5)(C) provides that if a motion to compel “is granted
in part and denied in part, the court may . . . after giving an opportunity to be heard, apportion the
reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). “In determining a reasonable
apportionment of fees, the court will look to the relative degree of success of the party seeking fees.”
McGrath v. Everest National Ins. Co., 2:07 cv 34, 2008 WL 4261075, at *1 (N.D. Ind. Sept. 11,
2008). “However, the degree of success in the motion to compel is not the sole determinant when
proportioning fees. The court also will look to the degree to which the objecting party was justified
in refusing greater cooperation.” Id. “District courts possess wide latitude in fashioning appropriate

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sanctions and evaluating the reasonableness of attorney’s fees requested.” Johnson v. Kakvand, 192
F.3d 656, 661 (7th Cir. 1999).
Both Defendant Buncich and Forgey argue that they are the prevailing parties in the motion
to compel and are entitled to an award of attorney’s fees and costs pursuant to Federal Rule of Civil
Procedure 37(a)(5)(B). However, the Court plainly granted Plaintiff’s motion to compel in part and
ordered the parties to submit argument as to how fees should be apportioned under Federal Rule of
Civil Procedure 37(a)(5)(A), not argument as to who prevailed or what the size of the award should
be pursuant to Federal Rule of Civil Procedure 37(a)(5)(B). The fact that the motion to compel was
denied in part does not mean Plaintiff was the losing party. Rather, Plaintiff prevailed in its request
to have the Court set a briefing schedule on the issue of qualified immunity. The impasse caused by
Defendants Buncich and Forgey asserting qualified immunity to avoid producing discovery, but not
actually bringing that issue before the Court, would likely still be ongoing if Plaintiff had not filed
its motion to compel.
The Court, in its discretion, declines to award any party attorney’s fees and costs incurred
in making or defending Plaintiff’s motion to compel, and finds it appropriate that it apportion the
costs between the parties, to be borne at their own expense. See Fed. R. Civ. P. 37(a)(5)(C);
Johnson, 192 F.3d at 661 (holding that a district court possess wide discretion in awarding attorney’s
fees and costs under Rule 37). Considering the enmity that has marked the exchange of information
in this case, the Court strongly encourages the parties to amicably work through the remainder of
discovery and seek judicial intervention only as a last resort.

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III.

Conclusion
Accordingly, the Court hereby DENIES the Itemization of Cost and Fees, Including

Attorney’s Fees for Preparation of Motion to Compel Discovery from Defendants John Buncich and
William Forgey [DE 86]; Defendant John Buncich, Individually and in His Official Capacity as
Lake County Sheriff, Itemization of Costs and Fees, Including Attorney’s Fees for Defense of
Plaintiff’s Motion to Compel [DE 87]; and the Itemization of Costs and Fees, Including Attorney’s
Fees, for Defending Motion to Compel Discovery from Defendants John Buncich and Dr. William
Forgey [DE 96].
SO ORDERED this 23rd day of May, 2016.

s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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