Fowler et al v. U S A

Filing 59

ORDER denying 37 Appeal of Magistrate Judge Decision re 30 Order on Motion to Compel, Order on Motion for Attorney Fee. It is ordered that plaintiffs file a detailed summary of time spent, hourly attorney rates and expenses incurred in conjunctio n with the motion to compel within 20 days of the issuance of this order. Thereafter, the government shall have 20 days to file any response in opposition. It is further ordered that upon receipt of these briefs from each party, the matter is referred to Magistrate Judge Kirk for determination of attorney fees, costs and expenses which shall be paid by the government.Signed by Judge James T Trimble, Jr on 6/16/2009. (crt,Reasor, M)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION

ANDREW FOWLER, ET AL. versus THE UNITED STATES OF AMERICA

CIVIL ACTION NO. 08-216 JUDGE TRIMBLE MAGISTRATE JUDGE KIRK

ORDER Before the court is the government's appeal' of the recent order2 by Magistrate Judge Kirk granting plaintiffs' motion to compel3 and awarding attorney fees pursuant to Fed. R. Civ. P. 37(a)(5)(A). The government contends that it was error for the magistrate judge to award attorney fees under Rule 37(a)(5) because it was "substantially justified" in withholding certain responses to interrogatories propounded by plaintiffs.4 Specifically, the government asserts that plaintiffs' interrogatories of December 5,2008, requesting "IRS administrative files, an exhibit list, witness list and all facts the United States relied on in denying Plaintiffs' refund claim" were premature given the fact that the government had not yet employed an expert in this case and no depositions

`R. 37. 2R. 30. 3R. 19.
( 1h 5

4R. 37-2 at p. 4, contrasting Washington v. M. Hanna Const., Inc., 299 Fed. Appx. 399 Cir. 2008) and citing Amos v. Jackson, 2007 WL 1347779, *5 (W.D. La. May 8, 2007).

had been taken by either party as of that date.5 A federal judge may refer to a magistratejudge, with enumerated exceptions, any pretrial matter pending before him.6 Parties who object to any finding by the magistrate judge may file written objections thereto within ten (10) days of the issuance of the order in question.7 The district judge shall modify only such portions of the magistrate judge's order which he finds to be clearly erroneous or contrary to law,8 In making this determination, the districtjudge may not consider arguments not previously heard by the magistratejudge on the original referred motion.9 The court has reviewed the law and argument advanced by the parties and finds that the government has failed to demonstrate that the assessment ofattorney fees under Rule 37(a)(5)(A) was clearly erroneous or contrary to law. Rule 37(a)(5) provides, in part, that if a motion to compel 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. But the court must not order this payment if:
* *

(ii) if the opposing party's nondisclosure, reponse, or objection was substantially justified... We agree with Magistrate Judge Kirk's assessment ofthe interrogatories at issue and find

5R. 37-2 at p. 2.
628

U.S.C.

§ 636(b)(l)(A).

7Fed. R. Civ. P. 72(a). 81d.
9g

Fed. Proc., L. Ed.

§ 20:205.
2

that they sought discoverable information in keeping with the basic premise that discovery is necessary to prevent trial by ambush. Although we are aware that discovery was ongoing in this case at the time plaintiffs propounded the interrogatories at issue upon the government, the government had a duty to provide answers which were complete at that time and, upon further discovery, supplement such responses pursuant to Fed. R. Civ. P. 26(e). Accordingly, the government's appeal of the magistrate judge's assessment of attorney fees associated with plaintiffs' motion to compel is DENIED. It is ORDERED that plaintiffs shall file a detailed summary of time spent, hourly attorney rates and expenses incurred in conj unction with the motion to compel at issue within twenty (20) days ofthe issuance ofthis order. Thereafter, the government shall have twenty (20) days to filc any response in opposition to plaintiffs' summary of attorney fees, costs and expenses. It is further ORDERED that, upon receipt of these briefs from each party, the matter is referred to Magistrate Judge Kirk for determination of the attorney fees, costs and expenses which shall be paid by the government.
1)t~

THUS DONE AND SIGNED in chambers at Alexandria, Louisiana this June, 2009.

i ~`

day of

JAMES T. TRIMBLE, JR. UN9tED STATES DISTRICT JUDGE

3