Dey v. Coughlin et al

Filing 187

ORDER granting in part and denying in part 182 and 185 Defendants' motions to compel and for attorney's fees under Rule 37 of the Federal Rules of Civil Procedure. Plaintiff is ordered to respond to Defendants' post-judgment disco very requests on or before July 1, 2022, and Defendants are awarded compensable attorney's fees under Rule 37(a)(5) in the amount of $515.20. Signed on 6/15/2022 by District Judge Roseann Ketchmark. (Brown, Jonathan) Modified on 6/15/2022 to reflect a copy of the Order mailed to Ms. Judy Dey 1500 SW 3rd Street Lees Summit, MO, 64081 (Woods, Gloria).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JUDY DEY,
Plaintiff,
v.
BETTE COUGHLIN, INDIVIDUALLY
AND AS EXECUTOR OF THE ESTATE
OF PATRICK MICHAEL HENNESSEY;
AND ESTATE OF PATRICK MICHAEL
HENNESSEY,
Defendants.

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Case No. 4:19-cv-00318-RK

ORDER
Before the Court is Defendants’ requests for an order compelling Plaintiff to respond to
Defendants’ post-judgment discovery requests, and for an award of fees and costs associated with
seeking the motion to compel pursuant to Rule 37 of the Federal Rules of Civil Procedure. (Docs.
182, 185.) Defendant filed suggestions in support of its motion to compel (Doc. 182-1), and
Plaintiff did not file a response to either motion. Additionally, the Court held a hearing on
Defendants’ request for an order to compel discovery on May 5, 2022, at which Plaintiff appeared
pro se.
After careful consideration of Defendants’ motions and the parties’ arguments at the May
5, 2022 hearing, the Court ORDERS: (1) Defendants’ motion to compel discovery (Doc. 182) is
GRANTED, and Plaintiff is ORDERED to respond to Defendants’ post-judgment discovery
requests on or before July 1, 2022; and (2) Defendants’ request under Rule 37(a)(5) for reasonable
expenses incurred in making the motion to compel, including attorney’s fees (Docs. 182, 185) is
GRANTED in part and DENIED in part, and the Court awards attorney’s fees in the amount of
$515.20.
I.

Background
Plaintiff brought this negligence and premises liability cause of action against Defendants

after the ceiling of a home where she worked collapsed on her. The case was heard before a jury
on July 26-29, 2021. Following the jury’s verdict in favor of Defendants, a clerk’s judgment was
entered on August 3, 2021. (Docs. 144, 151.) Plaintiff filed a pro se motion for new trial on

August 30, 2021 (Doc. 153), and an amended motion for new trial on August 31, 2021 (Doc. 156).
Plaintiff’s amended motion for new trial was denied on October 20, 2021. (Doc. 170.)
After Plaintiff filed her initial pro se motion for new trial, Defendants filed a motion for
leave to file bill of costs out of time. (Doc. 157.) The Court granted Defendants’ motion for leave
to file bill of costs out of time, finding good cause under Rule 6 of the Federal Rules of Civil
Procedure because Plaintiff had filed her pro se motions seeking a new trial after the time for
Defendants to file a bill of costs had originally expired. (Id. at 2.) Accordingly, Defendants filed
a proposed bill of costs on September 22, 2021. (Doc. 166.) Plaintiff did not file a response to
either Defendants’ motion for leave to file bill of costs out of time or Defendants’ proposed bill of
costs. The Court granted Defendants’ bill of costs on October 22, 2021, and awarded Defendants
costs in the amount of $5,952.15. (Doc. 171.)
On January 12, 2022, Defendants sent to Plaintiff, as judgment debtor, discovery requests
including interrogatories and a request for production. (See Doc. 176.) After Plaintiff failed to
respond, at Defendants’ request and pursuant to the Federal Rules of Civil Procedure and Local
Rule 37.1, the Court held a discovery dispute hearing on March 2, 2022. (See Doc. 180.) Plaintiff
did not appear. 1 On March 9, 2022, the Court issued an order requiring Plaintiff to respond to the
discovery requests properly propounded by Defendants under Rules 33 and 69 of the Federal Rules
of Civil Procedure. (Doc. 181.)
On April 11, 2022, Defendants filed the instant discovery motion under Rule 37(a), seeking
an order compelling Plaintiff to respond to the discovery requests propounded on January 12, 2022.
(Doc. 182.) Plaintiff did not file a response to this motion, either. On May 5, 2022, the Court held
a hearing on the motion to compel by teleconference. Plaintiff appeared at this hearing pro se.
After the hearing, Defendants filed a second motion seeking costs associated with the motion to
compel and included a supporting invoice seeking an award of attorney’s fees in the amount of
$1,413.00 for 6.3 hours of attorney work. (Docs. 185, 185-1.) Plaintiff did not file a response to
this additionally motion, and the time for doing so has passed.

After the hearing, Plaintiff independently communicated to the Court she had been unable to join
the teleconference discovery hearing due to technical difficulties. The Court informed Plaintiff she should
address any concerns related to the discovery dispute teleconference by filing an appropriate motion or
communicating with opposing counsel. To date, Plaintiff has not formally communicated with the Court
regarding this discovery hearing or any other related matter by filing an appropriate motion or otherwise.
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II.

Discussion
A.

Motion to Compel Discovery Responses

Under Rule 37(a)(1) of the Federal Rules of Civil Procedure, “[o]n notice to other parties
and all affected persons, a party may move for an order compelling . . . discovery.” A motion to
compel discovery “must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make disclosure or discovery in an effort to
obtain it without court action.” Id. The rules further provide: “A party seeking discovery may
move for an order compelling an answer, designation, production, or inspection” if (1) “a party
fails to answer an interrogatory submitted under Rule 33,” and (2) “a party fails to produce
documents . . . as requested under Rule 34.” Rule 37(a)(3)(B)(iii)-(iv).
As the Court has previously found, Defendants properly propounded the interrogatories at
issue here to Plaintiff as a judgment debtor consistent with Federal Rules of Civil Procedure,
including Rule 33 (interrogatories), Rule 34 (request for production), and Rule 69(a)(2)
(authorizing discovery under the rules of civil procedure “[i]n aid of the judgment or execution”
otherwise secured). (See Doc. 181 (order finding the discovery requests proper and that Plaintiff
must respond to the discovery requests).) Additionally, Defendants state in the motion to compel
and supporting suggestions that Plaintiff did not respond to the discovery requests and Plaintiff
had earlier communicated to counsel that she would not answer the discovery requests unless
instructed to do so by the Court. (Doc. 182-1 at 2.) Accordingly, the Court held a discovery
dispute conference by telephone and issued an order requiring Plaintiff to comply with the
discovery requests. (Doc. 181.) The motion states counsel then communicated with Plaintiff and
sent Plaintiff the Court’s March 9, 2022 discovery order by mail and (at Plaintiff’s request) by email. Defendants state in the motion that Plaintiff did not respond further. (Doc. 182-1 at 2.)
After careful review of the submissions and the parties’ arguments at the May 5, 2022
hearing, the Court finds Defendants have satisfied Rule 37(a) and are entitled to an order
compelling Plaintiff to respond to the January 12, 2022 post-judgment discovery requests
propounded under Rules 33 and 34 of the Federal Rules of Civil Procedure. Defendants’ motion
to compel discovery under Rule 37(a) (Doc. 182) is GRANTED. Plaintiff is ordered to respond
to Defendants’ post-judgment discovery requests on or before July 1, 2022.

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B.

Motion for Reasonable Fees and Expenses

Next, the Court considers Defendants’ request for an award of reasonable expenses
incurred in making the motion, including attorney’s fees, under Rule 37(a)(5). When a motion to
compel discovery response is granted, Rule 37(a)(5) provides:
the court must, after giving an opportunity to be heard, require the party . . . whose
conduct necessitated the motion . . . 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.
Rule 37(a)(5)(A).
As reflected above, the Court initially finds Defendants as the moving party attempted in
good faith to obtain the properly propounded post-judgment discovery without court action and
prior to filing the instant motion to compel. In addition, the Court finds Plaintiff’s non-disclosure
was not substantially justified. At the May 5, 2022 hearing, Plaintiff acknowledged having initially
received Defendants’ discovery requests, and stated that she had not responded to the discovery
requests because she believed her trial counsel (not her) should be liable for the costs. Plaintiff
stated that after the jury returned its verdict in favor of the defense, her trial counsel withdrew their
representation in her case. Shortly thereafter, Plaintiff stated defense counsel informed her the
defendants had agreed to waive costs if no post-trial motions were filed. After having been so
informed, Plaintiff nonetheless filed pro se motions for a new trial. Plaintiff stated prior to
terminating their representation, her trial counsel never told her she could be liable for any costs
by doing so. Plaintiff stated that she did not respond to the discovery requests because she did not
believe she should be liable for those costs. As the Court has found on multiple occasions,
Defendants properly propounded post-judgment discovery after having been granted leave to file
bill of costs out of time and after Defendants were granted a bill of costs, both of which were
unopposed by Plaintiff despite having had the opportunity to do so. The Court has previously
ordered Plaintiff to respond to the discovery requests. Plaintiff failed to comply with the prior
order. Plaintiff’s initial refusal to respond to the properly propounded post-judgment discovery

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requests, amplified by her continued refusal to do so despite the Court having ordered a response,
is not substantially justified under these circumstances.
Finally, the Court does not find any circumstances in this case that would otherwise make
an award of reasonable expenses incurred in the instant motion to dismiss unjust. Plaintiff admitted
she received the discovery requests but chose not to respond because of her belief she should not
be liable to pay those costs. Ultimately, Plaintiff had every opportunity to participate and to litigate
the bill-of-costs issue when Defendants filed their motion for leave to file a bill of costs as well as
when Defendants filed a proposed bill of costs, but she chose not to. Plaintiff is obligated under
the Federal rules of Civil Procedure, as well as an order issued by this Court, to respond to the
properly propounded post-judgment discovery requests issued by Defendants.
Having found Defendants, as a prevailing party moving to compel under Rule 37(a), are
entitled to an award of reasonable expenses, the Court must determine the amount of expenses to
be awarded against Plaintiff. In their motion for additional costs filed after the May 5, 2022
hearing, and their initial motion to compel, Defendants request an award of fees for attorney work
under Rule 37(a)(5) regarding the post-judgment discovery dispute. (Docs. 182, 185.) In their
motion for additional costs, Defendants specifically request an award of $1,413.00 for a reported
6.3 hours of attorney work. In support, Defendants attached an invoice documenting the attorney
time for which they request an award under Rule 37(a)(5). (Doc. 185-1; see Doc. 185 at 1-2 (noting
the attached invoice “document[s] the attorney’s fees pertaining to Defense Counsel’s attempts
and efforts to obtain Plaintiff’s discovery responses”).)
When awarding fees under Rule 37(a)(5), the Court has an obligation to ensure the fees
awarded are “reasonable.” See COKeM Int’l, Ltd. v. MSI Entertainment LLC, No. 19-cv-3114
(JRT/HB), 2021 WL 6231377, at *1 (D. Minn. Oct. 15, 2021) (recognizing even absent a response
by the non-moving party to the fee request under Rule 37(a)(5), the Court has a responsibility to
ensure any such fees awarded are reasonable). In addition, Rule 37(a)(5) only permits an award
of “reasonable expenses incurred in making the motion [to compel], including attorney’s fees.”
(Emphasis added.) Generally, courts construe Rule 37(a)(5) as only permitting an award of fees
directly connected to the motion to compel discovery itself, rather than ancillary discovery
communications. See Webb v. Cty. of Stanislaus, No. 2:21-mc-00696-JNP-JCB, 2022 WL
1288857, at *3 n.19 (D. Utah April 29, 2022) (collecting federal cases holding award under Rule
37(a)(5) only includes fees incurred in making the motion to compel itself); VanMeter v. Briggs,
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No. 18-0970 RB/JHR, 2020 WL 954771, at *4 (D.N.M. Feb. 27, 2020) (an award of reasonable
expenses under Rule 37(a)(5) “focuses on the time and resources spent producing the motions [to
compel]”).
Turning to the invoice Defendants submitted in support of their motions for an award of
attorney’s fees under Rule 37(a)(5), Defendants seek an award of $1,413.00 for 6.3 hours of
attorney work. Although not specifically stated in their request, it appears Defendants request an
award of attorney’s fees calculated by an hourly rate of approximately $224.00 per hour. 2 The
Court finds an award for compensable attorney work at $224.00 per hour is reasonable. Next, the
Court notes the invoice supporting Defendants’ request appears to reflect attorney hours spent on
the entire post-judgment discovery issue, with entries beginning February 14, 2022, and going
through May 5, 2022 hearing on Defendants’ motion to compel. Pursuant to the scope of an award
authorized under Rule 37(a)(5), the Court will disallow an award of attorney’s fees for attorney
work dated February 14, 2022, through April 6, 2022, specifically 4 hours of attorney work
regarding communications, review, and drafting not otherwise associated with the instant motion
to compel discovery (although related to the underlying post-judgment discovery). Accordingly,
the Court will award Defendants attorney’s fees for 2.3 hours of compensable attorney work under
Rule 37(a)(5) for expenses reasonably incurred in making the motion to compel. Therefore,
pursuant to Rule 37(a)(5), the Court awards Defendants attorney’s fees in the amount of $515.20
(or 2.3 hours of compensable attorney work at a rate of $224.00 per hour).
III. Conclusion
After careful consideration and for the reasons explained above, the Court ORDERS as
follows:
(1) Defendants’ motion to compel discovery (Doc. 182) is GRANTED, and Plaintiff is
ORDERED to respond to Defendants’ post-judgment discovery requests on or before July
1, 2022; and

Defendants’ request for a total award of $1,413.00 for 6.3 hours of attorney work yields an actual
hourly rate of $224.2857 ($1,413.00 / 6.3 hours = $224.2857).
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(2) Defendants’ request under Rule 37(a)(5) for reasonable expenses incurred in making
the motion to compel, including attorney’s fees (Docs. 182, 185) is GRANTED in part
and DENIED in part, and the Court awards attorney’s fees in the amount of $515.20.
IT IS SO ORDERED.

s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: June 15, 2022

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