Bias v. CB&I LLC, et al

Filing 21

ORDER granting 18 Amended MOTION to Compel Discovery Responses and, MOTION for Attorney Fees. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 6/12/2017. (KAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SCOTT BIAS

CIVIL ACTION

VERSUS

NO. 16-623-JJB-RLB

CB&I, INC., ET AL.

CONSOLIDATED WITH:
CV 16-625-JJB-RLB
Pertains to Both Cases
ORDER

Before the Court is Defendant CB&I LLC’s (“CB&I”) Amended Motion to Compel
Discovery Responses and for Attorney’s Fees (R. Doc. 18) filed on May 22, 2017. CB&I seeks
an order compelling Scott Bias (“Plaintiff”) to respond fully to interrogatories and requests for
production propounded on March 3, 2017. CB&I asserts that despite certain extensions, Plaintiff
has not responded to the written discovery requests, with the exception of providing executed
authorizations to conduct third-party discovery. CB&I seeks recovery of reasonable expenses
incurred in bringing the motion. CB&I did not, however, provide any specific amount of
expenses or fees at issue.
The Court ordered Plaintiff to file an expedited response to the instant motion. (R. Doc.
19).
On June 6, 2017, Plaintiff and his lead counsel filed a memorandum indicating that he
was providing discovery responses (R. Doc. 20-1) to CB&I that same day. (R. Doc. 20).
Plaintiff and his counsel also represent that a “substantial factor” in failing to provide the
discovery responses in a timely manner was Plaintiff’s out of the country travels, resulting in a
failure of communication with defense counsel regarding the outstanding discovery. Plaintiff’s

counsel takes full responsibility for this failure and requests that if reasonable expenses are
awarded, that Plaintiff’s attorney (and not Plaintiff) should be responsible for payment. Plaintiff
also requests that no sanctions or other adverse action be ordered in connection with the untimely
discovery responses.
Rule 37 of the Federal Rules of Civil Procedure provides the following with regard to the
award of reasonable expenses where discovery is provided after the filing of the motion to
compel:
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After
Filing). If the motion is granted--or if the disclosure or requested discovery is
provided after the motion was filed--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. But the court
must not order this payment 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.
Fed. R. Civ. P. 37(a)(5)(A).
There is no dispute that CB&I attempted to obtain the discovery responses without court
action. (See R. Doc. 18-7). Furthermore, Plaintiff’s counsel’s failure to communicate accurately
and sufficiently with defense counsel regarding discovery in this action unfortunately led to the
need for the instant motion. Although it is not completely clear to the Court how this
miscommunication occurred, these facts do not constitute substantial justification for Plaintiff’s
failure to respond to the discovery requests or otherwise constitute a circumstance that would

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make an award of expenses unjust. The Court agrees that no sanctions or other adverse action is
warranted.
Based upon the foregoing,
IT IS ORDERED that CB&I LLC’s (“CB&I”) Amended Motion to Compel Discovery
Responses and for Attorney’s Fees (R. Doc. 18) is GRANTED. As Plaintiff has provided her
responses, no further production is ordered at this time.
IT IS FURTHER ORDERED that CB&I LLC is entitled to an award of the reasonable
attorney’s fees and costs that it incurred in bringing this motion to compel and that Plaintiff’s
attorney Mr. Bush shall be responsible for such payment. In connection with this award, the
parties are to do the following:
(1)

If the parties are able to resolve this among themselves or otherwise agree to a
reasonable amount of attorney’s fees and costs,1 Plaintiff’s counsel shall pay that
amount;

(2)

If the parties do not agree to a resolution, CB&I LLC shall, within 14 days of the
docketing of this Order, file a Motion for Fees and Costs pursuant to Rule 37,
setting forth the reasonable amount of costs and attorney’s fees (including
evidentiary support) incurred in obtaining this Order; and

(3)

Plaintiff shall, within 7 days of the filing of CB&I LLC’s Motion, file any
opposition pertaining to the imposition of the amounts requested by CB&I LLC.

Signed in Baton Rouge, Louisiana, on June 12, 2017.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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This Court has previously found that a relatively modest award was reasonable under similar circumstances. See
Talley v. State Farm Mutual Automobile Ins. Co., No. 16-cv-406, ECF No. 15 (M.D. La. Dec. 9, 2016) ($250
award). The Court also recognizes that a reasonable award under Rule 37 may be less than the actual fees incurred.
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