Childers v. General Motors Company LLC

Filing 81

ORDER granting in part and denying in part Plaintiff's 73 Motion for Sanctions--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENISE CHILDERS,
Plaintiff,
v.

Case No. 2:16-cv-14428
District Judge Nancy G. Edmunds
Magistrate Judge Anthony P. Patti

GENERAL MOTORS LLC,
Defendant.
_________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SANCTIONS, TO COMPEL, AND TO
EXTEND SCHEDULING ORDER (DE 73)
This matter is before the Court for consideration of Plaintiff’s motion for
sanctions, to compel, and to extend scheduling order (DE 73), Defendant’s
response (DE 76), Plaintiff’s reply (DE 78), and the parties’ joint list of unresolved
issues (DE 80). Judge Edmunds referred this motion for hearing and
determination. (DE 74.)1
Plaintiff’s motion came before the Court for a hearing on September 5,
2018. On the date set for hearing, attorneys Jeffrey M. Thomson, Margaret Carroll
Alli, and Alexis Martin appeared. At the hearing, counsel for the parties informed

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On July 9, 2018, the Court granted Plaintiff’s request for extension of the
scheduling order dates, and stated that the remainder of the issues raised in
Plaintiff’s motion remain pending and will be addressed at the scheduled hearing.
(Text-Only Order dated 7/9/2018.) Accordingly, the portion of the motion which
requests an extension of the scheduling order is deemed moot.

the Court that they had resolved several more of the disputed matters that had been
the subject of Plaintiff’s motion. Counsel for the parties placed a stipulation as to
these resolved matters on the record.
The two issues that remain unresolved are: (1) whether Defendant has
violated the Order to Compel, Defendant’s stipulation, and the Stay Order; and (2)
if so, what sanctions are appropriate under the circumstances. As to these
remaining issues, consistent with my findings and reasoning stated on the record,
which are hereby incorporated by reference, Plaintiff’s motion for sanctions, to
compel and to extend the scheduling order (DE 73), as narrowed by the August 31,
2018 joint list of unresolved issues (DE 80) and the aforementioned stipulation, is
GRANTED IN PART and DENIED IN PART.
First, the Court finds that Defendant has violated the Court’s October 5,
2017 Order granting in part and denying in part Plaintiff’s motion to compel
(DE37), including the stipulations placed on the record at the October 4, 2017
hearing, as well as the Court’s October 11, 2017 Stay Order, which expressly
instructed:
[n]otwithstanding the stay on Defendant’s obligation to produce
discovery materials to Plaintiff, Defendant is not absolved of its
obligation to continue to collect and prepare the materials which were
previously ordered or agreed to be produced by the stipulations, so
that these materials are capable of being produced soon after
resolution of Plaintiff’s objections [to the Protective Order].

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(DE 40). The stay was lifted, at the latest, on May 3, 2018, when the parties filed
their stipulated protective order (DE 67). While Defendant has produced a large
number of documents since the stay was lifted, it is undisputed that it produced the
vast majority of those documents (almost 80%) only after the instant motion was
filed on June 20, 2018, and well after the stay was lifted and the stipulated
protective order was entered on May 3, 2018. Therefore, as explained on the
record, the Court finds that Defendant failed to comply with the Court’s orders –
including the Court’s directive to “collect and prepare” discovery materials for
production during the seven month stay period – and the parties’ stipulations, and
Plaintiff’s instant motion to compel was necessary.
Pursuant to Federal Rule of Civil Procedure 37(b)(2)(c), the Court must
award the payment of “reasonable expenses, including attorney’s fees” for failure
to comply with a court order, “unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
The Court does not find that Defendant’s failure to comply with the Court’s orders
and the parties’ stipulations was “substantially justified” or that “other
circumstances make an award of expenses unjust,” and thus Plaintiff is awarded
her reasonable costs and attorney’s fees associated with this motion, pursuant to
Fed. R. Civ. P. 37(b)(2)(C). This award is to be paid by Defendant General Motors
to Plaintiff’s counsel. “Reasonable expenses” are expressly limited to expenses

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incurred in connection with the instant motion, including the briefing, preparation
for the hearing, and attendance at the hearing.
Plaintiff shall submit an itemized bill of costs, under oath or declaration, for
the Court’s consideration via ECF on or before September 19, 2018 in support
thereof; thereafter, any specific objections to the amount of fees or costs being
sought must be filed by Defendant on or before September 26, 2018. Defendant
shall then pay the award of expenses within ten days of the Court’s determination.
Finally, Rule 37(b)(2)(A) provides that the Court “may issue further orders”
for sanctions for failure to obey a discovery order. Fed. R. Civ. P. 37(b)(2)(A).
The Court finds, for the reasons stated on the record, that such further sanctions are
not warranted here. Furthermore, while Plaintiff may have suffered some
prejudice, it has largely been cured by Defendant’s late discovery productions, the
agreements made in the joint statement (DE 80), the stipulations placed on the
record today, the extension of the scheduling order deadlines, and the costs and
fees awarded herein.
IT IS SO ORDERED.
Dated: September 5, 2018

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on September 5, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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