Perry v. Dillards, Inc.
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants motion for sanctions (Doc. No. 18) and request for an award of attorneys fees and costs (Doc. No. 26 ) shall be DENIED. Signed by District Judge Audrey G. Fleissig on 2/1/2013. (KSM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
VALERIE PERRY by and through
JEFFREY PERRY as Next Friend,
Case No. 4:12CV01127AGF
MEMORANDUM and ORDER
This matter is before the Court on Defendant’s motions for sanctions (Doc. No. 18)
and to recover attorney’s fees and costs associated with the filing of its motion to compel a
supplemental response to Interrogatory 14. (Doc. No. 26.)
The Federal Rules permit the imposition of sanctions for failure to comply with court
orders and discovery requests from opposing parties. Where a motion to compel has been
filed, Rule 37(a)(5)(A) provides:
(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
(iii) other circumstances make an award of expenses unjust.
Upon consideration of Plaintiff’s responses to these motions, the Court
concludes that there is an insufficient basis for an award of sanctions or fees
and costs. The Court is satisfied that Plaintiff made a good faith, although
ultimately insufficient, effort to provide timely, thorough discovery responses.
It further appears that Plaintiff’s efforts were thwarted in part by factors outside
his control, such as the death of Plaintiff’s next friend and errors in the
completion of authorization forms. There is no evidence of bad faith or
purposely evasive behavior on Plaintiff’s part. Moreover, it appears to the
Court that had Defendant made further efforts to resolve this matter prior to
filing its motions to compel, that some, if not all of the difficulties at issue here
might have been avoided. See, e.g., Young v. Dornan, No. 8:07CV265, 2008
WL 4372819, at*3 (D. Neb. Sept. 23, 2008) (denying request for attorney’s
fees where counsel attempted to cooperate in discovery and neither acted in bad
faith nor for an improper purpose).
IT IS HEREBY ORDERED that Defendant’s motion for sanctions (Doc. No. 18) and
request for an award of attorney’s fees and costs (Doc. No. 26 ) shall be DENIED.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of February, 2013.
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