Jones v. Horseshoe Casino et al

Filing 96

OPINION AND ORDER: GRANTING 86 SUPPLEMENT Fee Petition filed by Gasser Chair Company and ORDERING Plaintiff Gloria Jones to reimburse Defendant Gasser Chair Company's attorney fees in the sum of $962.00 within a reasonable time. Signed by Magistrate Judge Paul R Cherry on 12/17/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GLORIA JONES,
Plaintiff,
v.
GASSER CHAIR COMPANY, SUSPA,
INC., and HORSESHOE CASINO,
Defendants.

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CAUSE NO.: 2:15-CV-14-PPS-PRC

OPINION AND ORDER
This matter is before the Court on Defendant, Gasser Chair Co., Inc.’s, Itemization of
Reasonable Expenses [DE 86], filed by Defendant Gasser Chair Co., Inc. (“Gasser”) on November
24, 2015. Plaintiff Gloria Jones filed an objection on December 7, 2015, and Gasser filed a response
on December 11, 2015.
This matter originates in a FRCP Rule 37 Motion to Compel Discovery, filed by Gasser on
October 9, 2015. On November 20, 2015, the Court issued an Opinion and Order granting in part
and denying in part the motion. In that order, the Court ordered additional briefing on the issue of
awarding reasonable expenses. In the instant Itemization, Gasser requests attorney fees in the
amount of $962.00 for reasonable expenses related to the Motion.
Although the motion was granted in part and denied in part, the Court ordered Jones to
respond to all of the discovery that Gasser had identified in its motion. As a result, the Court is using
the standard set forth in Federal Rule of Civil Procedure 37(a)(5)(A), to be used “If the Motion is
Granted,” to govern the award of fees, and not the standard in 37(a)(5)(C), to be used “If the Motion
is Granted in Part and Denied in Part.”

Rule 37 provides, in part, that “[i]f the motion is granted . . . the court must, after giving an
opportunity to be heard, require the party or deponent 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). However, the court
must not order the payment of fees if “(i) the movant filed the motion before attempting in good faith
to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure,
response, or objection was substantially justified; or (iii) other circumstances make an award of
expenses unjust.” Id.
Jones objects to an award of reasonable expenses, arguing that the matter falls within the
exceptions of Rule 37(a)(5)(A), but Jones does not object to the amount of Gasser’s claimed
reasonable expenses.
Jones first objects to an award of reasonable expenses on the ground that her position was
substantially justified. Regarding the HIPAA waivers that the Court ordered Jones to provide to
Gasser, Jones believes she was substantially justified in her argument that the request for 10 years
of medical history is overly broad and unduly burdensome. However, this is not the argument Jones
made in her response to the motion to compel.1 In that response, she raised no substantive objection
to the requested waiver and indicated that she had given the HIPAA waivers to Gasser. Jones makes
no argument that this position was substantially justified.
Jones next argues that her position was substantially justified because she had answered the
interrogatories to the best of her ability at the time and had indicated in the answers that she would
supplement with more information as it was discovered. However, the Court found that Jones had
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Jones represents that she made this objection at a pretrial conference. However, that was not the appropriate
way to bring the objection to the Court’s attention for the purpose of ruling on the motion to compel.

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not made a proper answer to any of the interrogatories because all of the answers provided were not
signed by Jones as Federal Rule of Civil Procedure 33(b)(5) requires. The Court determined that
some of her answers, if they had been properly-signed, would have been sufficient, but, without
Jones’s signature, all of the answers were inadequate. Jones has provided no argument that her
failure to serve properly-signed interrogatories on Gasser was substantially justified, and the Court
finds that it was not.
Finally, Jones notes that she turned over four years of tax returns in a supplemental Rule 26
disclosure. This itself is disputed by Gasser in its response to Jones’s objection, but even if taken
as true, this fact does not provide an argument that Jones’s position in not turning over 7 years of
documents was substantially justified. In her response to the requests for production of tax
documents, Jones indicated that she was compiling the information sought or requesting the
information from the IRS. The Court, in granting Gasser’s motion, noted that Jones made no
substantive objection to turning over the information and had previously indicated that the
information would be included in the Rule 26 Initial Disclosures. Jones has waited until the
objection to the award of fees to assert that 4 years of documents have been provided and makes no
substantive objection, even at this late hour, to the production of the documents for the other 3 years.
Partial compliance without explanation for the remaining noncompliance is not equivalent to
substantial justification.
Jones also objects to an award of reasonable expenses on the ground that there are
circumstances that would make an award unjust. First, Jones argues that it would be unjust to require
her, who has been granted leave to proceed in forma pauperis, to pay for Gasser’s attorney fees.
However, “[i]ndigency does not make an award unjust.” Banty v. Dings Co. Magnetic Group, No.

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09-C-0963, 2010 WL 4337905, at *3 (E.D. Wis., Oct. 22, 2010) (citing Bosworth v. Record Data
of Md., Inc., 102 F.R.D. 518, 520 (D. Md. 1984)). Further, though Jones is proceeding in forma
pauperis, she is not proceeding pro se. Her counsel, as a member of the bar, is imputed to have
knowledge of the federal rules and discovery procedures governing civil litigation. Jones’s status
as a litigant in forma pauperis does not make an award of reasonable expenses unjust.
Jones also argues that it would be unjust for her to pay Gasser’s reasonable expenses on the
ground that Gasser’s attorney—a salaried employee—would be paid twice for the work. However,
Gasser, in its response, explains that any reasonable expenses awarded go to the party that initially
paid the expenses and not to the attorney. Because the attorney would not be paid twice, this
argument fails.
Accordingly, the Court approves and GRANTS Defendant, Gasser Chair Co., Inc.’s,
Itemization of Reasonable Expenses [DE 86] and ORDERS Plaintiff Gloria Jones to reimburse
Defendant Gasser Chair Company’s attorney fees in the sum of $962.00 within a reasonable time.
SO ORDERED this 17th day of December, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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