Willink v. Boyne USA, Inc. et al

Filing 17

ORDER granting 8 Motion for Judgment on the Pleadings regarding Count II of Plaintiff's complaint. Count II is DISMISSED. Defendant's request for attorney's fees is DENIED. Signed by Judge Dana L. Christensen on 1/29/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

JOHN WILLINK,

)
)
Plaintiff,
)
)
vs.
)
)
BOYNE USA, INC. and
)
DOES I through V,
)
)
Defendants.
)
___________________________________ )

CV 12-74-BU-DLC

ORDER

Defendant Boyne USA, Inc. moved for a judgment on the pleadings with
respect to Count II of Plaintiff John Willink’s complaint. (Doc. 8.) Plaintiff does
not oppose the motion and it will be granted. Defendant’s request for attorney’s
fees for violation of the Local Rules will be denied.
Defendant requests attorney’s fees for Plaintiff counsel’s violation of Local
Rule 7.1(c)(1) in relation to Plaintiff’s motion to remand and Defendant’s motion
for judgment on the pleadings. Local Rule 7.1(c)(1) requires a party to contact
opposing counsel prior to filing a motion and indicate whether any party objects to
1

the motion. Defense counsel contacted Plaintiff’s counsel via email prior to filing
its motion for judgment on the pleadings regarding Count II and asked whether
Plaintiff would object to the motion. Plaintiff’s counsel did not respond to the
inquiry; instead, Plaintiff’s counsel asked whether Defendant would object to a
motion to remand. Defense counsel responded that it would object if the motion
was based on timeliness of removal, because controlling case law clearly held that
Defendant’s removal within 30 days of service was timely. Defense counsel
attached a Montana District Court decision supporting its position. Plaintiff’s
counsel never indicated whether he objected to the motion for judgment on the
pleadings, so Defendant filed its motion. Plaintiff then responded to the motion by
stating that he had chosen not to pursue his strict liability theory under Count II
and does not oppose the motion.
While Defense counsel’s frustration with the proceedings to date in this
matter is understandable, Plaintiff counsel’s actions do not warrant sanctions
pursuant to Local Rule 1.1(c) for violation of the Local Rules. There is no
indication Plaintiff’s counsel acted in bad faith in filing its motion to remand–in
fact, he complied with Local Rule 7.1(c)(1) by indicating in his motion that
Defendant objected to the motion. (Doc. 6 at 2.) The fact that all parties could
have been saved time and corresponding attorney’s fees if Plaintiff’s counsel had
2

heeded the law provided by Defense counsel does not amount to conduct requiring
sanctions. Similarly, Plaintiff’s counsel was dilatory in failing to respond to
Defendant regarding the motion for judgment on the pleadings. However, as there
is no indication of bad faith or an ongoing and intentional violation of the Local
Rules, as in Peterson v. Time Ins. Co., 2012 WL 1755166 (D. Mont. 2012),
attorney’s fees will not be awarded in this case. Accordingly,
IT IS ORDERED that Defendant’s motion for judgment on the pleadings
regarding Count II of Plaintiff’s complaint (doc. 8) is GRANTED. Count II of
Plaintiff’s complaint is DISMISSED. Defendant’s request for attorney’s fees is
DENIED.
Dated this 29th day of January, 2013.

3